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 New: Amnesty: Documents and ATF activities relevant to §207(b) and § 207(d) of the Gun Control Act of 1968
CRS memorandum on the NFRTR discusses amnesty issues
This November 28, 2005, Memorandum by William J. Krouse (click here to read it) is the most comprehensive and current legislative and policy analysis of issues arising from questions about the accuracy, completeness and reliability of the National Firearms Registration and Transfer Record (NFRTR). This 21-page Memorandum identifies areas for potential legislative action, and critically examines ATF's reasons for opposing the establishment of a new amnesty period to correct errors in the NFRTR.
   
Regulations for the 1968 amnesty published in the Code of Federal Regulations, Title 26, Chapter 1, § 179.120
The amnesty period from November 2, 1968, to December 1, 1968, was authorized under § 207(b) of the National Firearms Act of 1968, which is also known as Title II of the Gun Control Act of 1968. It is sometimes confused with the amnesty provision at § 207(d), which authorized the Secretary of the Treasury to establish future amnesty periods not to exceed 90 days each, upon publication of his intention to do so in the Federal Register. More than 40 years later, some people (including those in the firearms industry) continue to allege that ATF unfairly deprived gun owners of an opportunity to register their unregistered firearms by limiting the amnesty period to 30 days instead of the 90 days to which they were entitled under the law. This is an unfortunate misconception and is legally incorrect, because the Congress only intended and provided for a 30-day amnesty period in 1968. These published regulations (click here to read them) describe the 1968 amnesty and its implementation.
   
Current (2010) regulations for registration of NFA firearms under Title 27, Part 479, § 479.101

§ 479.101 Registration of firearms.

(a) The Director shall maintain a central registry of all firearms in the United States which are not in the possession of or under the control of the United States. This registry shall be known as the National Firearms Registration and Transfer Record and shall include:

(1) Identification of the firearm as required by this part;

(2) Date of registration; and

(3) Identification and address of person entitled to possession of the firearm as required by this part.

(b) Each manufacturer, importer, and maker shall register each firearm he manufactures, imports, or makes in the manner prescribed by this part. Each firearm transferred shall be registered to the transferee by the transferor in the manner prescribed by this part. No firearm may be registered by a person unlawfully in possession of the firearm except during an amnesty period established under section 207 of the Gun Control Act of 1968 (82 Stat. 1235).

(c) A person shown as possessing firearms by the records maintained by the Director pursuant to the National Firearms Act (26 U.S.C. Chapter 53) in force on October 31, 1968, shall be considered to have registered the firearms in his possession which are disclosed by that record as being in his possession on October 31, 1968.

(d) The National Firearms Registration and Transfer Record shall include firearms registered to the possessors thereof under the provisions of section 207 of the Gun Control Act of 1968.

(e) A person possessing a firearm registered to him shall retain proof of registration which shall be made available to any ATF officer upon request.

(f) A firearm not identified as required by this part shall not be registered.

Source: 36 FR 14256, Aug. 3, 1971. Redesignated at 40 FR 16835, Apr. 15, 1975, and amended by T.D. ATF 48, 44 FR 55843, Sept. 28, 1979.
   

Amnesty provision enacted under the National Firearms Act of 1968 (Title II of the Gun Control Act of 1968)
Under § 207(d) of the National Firearms Act of 1968 (Title II of the Gun Control Act of 1968) the Secretary of the Treasury was authorized to administrative establish unlimited numbers of future amnesty periods. There is nothing in the legislative history of this provision to offer guidance as to Congressional intent regarding the conditions under which a future amnesty period or periods may be established. The provision in current law states:

The Secretary of the Treasury, after publication in the Federal Register of his intention to do so, is authorized to establish such periods of amnesty, not to exceed ninety days in the case of any single period, and immunity from liability during any such period, as the Secretary determines will contribute to the purposes of this title.

Source: United States Statutes at Large, Volume 82. Washington, D.C.: U.S. Government Printing Office, 1969, page 1236.

NOTE: Effective January 24, 2003, the Bureau of Alcohol, Tobacco and Firearms (ATF) was transferred from the Department of the Treasury to the Department of Justice, and renamed the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Duties of the Secretary of the Treasury regarding ATF functions were transferred to the Attorney General. Thus, under current law, the Attorney General is empowered to establish future amnesty periods under provisions of § 207(d).
   

Unpublished regulations dated April 16, 1969, under which ATF allowed some unregistered NFA firearms to be registered after the amnesty period from November 2, 1968, to December 1, 1968, expired
ATF allowed thousands of unregistered NFA firearms to be registered after the 1968 amnesty period expired, under terms of unpublished regulations, contrary to law. Because a copy of the regulations obtained via the FOIA process could not be legibly reproduced, they have been copied and were published on pages 19-20 of a 2001 Congressional hearing record (click here to read them).

In a 1998 report (click here to read it), the Treasury Department Inspector General determined that "The law provided that such amnesty periods could be granted 'after publication in the Federal Register of (the Secretary of the Treasury's) intention to do so.' ATF advised us that the Bureau never issued a notice in the Federal Register. . . . ATF Counsel advised our counsel that a temporary grace period was authorized as an inherent corollary of the statute. ATF, however, was unable to locate any documented support for its limited conferral of amnesty beyond the statutory period exclusive of the IRS Amnesty Guidelines" (pages 11-12).

Importantly, the "former section of the IRS manual entitled 'Amnesty Guidelines', dated April 16, 1969," was issued after ATF issued (on January 1, 1969) published regulations in the Code of Federal Regulations stating that unregistered NFA firearms could only be registered during an amnesty period, in violation of ATF's own regulations.
   

Form 4667, used to register unregistered NFA firearms during the 1968 amnesty period
ATF created Form 4467, entitled "Registration of Certain Firearms During November 1968," as part of implementing the amnesty period that year. Under the National Firearms Act of 1968, better known as Title II of the Gun Control Act (GCA) of 1968, the Congress established a 30-day amnesty period during which unregistered NFA firearms could be registered with immunity from prosecution; however, such immunity did not extend to making false statements. Under the 1968 Act, the amnesty period was to go into effect on the day after the first day of the first month after the GCA was signed into law on October 22, 1968, by then-President Lyndon B. Johnson. The amnesty period, consequently, was from November 2, 1968, to December 1, 1968. ATF had little time to prepare, publicize the amnesty period and the kinds of firearms required to be registered, and to distribute Form 4467. Consequently, the amnesty period expired before many people were aware it had existed, or that certain types of firearms had to be registered.
   
FOIA on registration of DD shotguns
ATF's ruling dated March 1, 1994, that certain shotguns were "destructive devices" required these shotguns to be registered in the NFRTR. This FOIA was filed to determine the legal basis for ATF registering unregistered NFA firearms under this ruling, since the NFA and ATF's own regulations prohibit the registration of any unregistered NFA firearm except during an amnesty period established under § 207(d) of the Gun Control Act of 1968. These regulations were first published in 26 C.F.R., Section 170.20, in January 1969, and remain in effect today. The "registration period" for certain DD shotguns lasted from March 1, 1994, until ATF ended this arguably open-ended, undeclared amnesty period on May 1, 2001---which lasted 7 years and 2 months. This equals 86 months, or 85 times longer than the one-time 30-day amnesty period of 1968. ATF took more than 2 years to respond to this FOIA.
   
1979 Department of Justice memorandum to Congress states if ATF can't find an NFRTR record and the NFA firearm owner can, "the only solution" is to declare a new amnesty period
This hard-to-obtain Memorandum was written in 1979 by the Criminal Division of the Department of Justice as part of an investigation into allegedly inaccurate NFRTR records. Addressed to then-Idaho Senator James A. McClure, it determined that if "a particular individual or weapon is registered" in the NFRTR and ATF finds that its "files are missing," then "the only solution would be to declare another amnesty period." The Department of Justice distributed hundreds of copies of this Memorandum in 1996 as part of a package of documents sent to defendants nationwide as a result of the Busey videotape. The Memorandum is typically cited as "Response to Senator McClure," by Philip B. Heyman, Assistant Attorney General, and Lawrence Lippe, Chief, General Litigation & Legal Advice Section, Criminal Division, U.S. Department of Justice, dated November 29, 1979, bearing symbols LL:JJD:ajw, and is reproduced here in full. Note that when the ATF was transferred to the Department of Justice, effective January 24, 2003, the Secretary of the Treasury's statutory authority under Section 207(d) of the Gun Control Act of 1968, to establish new future amnesty periods, was transferred to the Attorney General.
   
In 1983, then-Senator Robert Dole proposed amending the NFA to established a "continuous" amnesty period
Robert E. Powis, Deputy Assistant Secretary of Enforcement in the Treasury Department responds to inquiries from Senator Dole in 1983 on S. 914, "A bill to protect firearms owners' constitutional rights, civil liberties, and rights to privacy." Senator Dole proposed allowing hold-harmless registration of unregistered NFA firearms or devices, as well as lifting the veil of secrecy regarding registration information. The language in the amendment is useful as discussions and debates about an amnesty period arise. Mr. Powis also stated that the 30-day amnesty period in 1968 had served its purpose, and thus unregistered NFA firearms could no longer be registered, contradicting the fact that ATF had registered thousands of NFA firearms after the 1968 amnesty period expired, as established in 1998 audits of the NFRTR by the Treasury Department Inspector General, and further documented by Eric M. Larson in his 2001 Congressional statement. These 1982 hearings may be cited as "The Federal Firearms Owner Protection Act." Hearing Before the Committee on the Judiciary, United States Senate, 98th Congress, 1st Session, on S. 914, October 4, 1984. Serial No. J-98-70. Washington, D.C.: U.S. Government Printing Office, 1984. For ATF's legal analysis of NFA documents containing "tax return" information, and the scope of information that may be released as well as withheld, click here. This document may be cited as "Memorandum from Marvin J. Dessler, Chief Counsel, to the ATF Director dated August 18, 1980, bearing symbols CC-28,778 RMT and numbered 22889."
In 2000, ATF submited reasons for declining to establish a new amnesty period to Congress
ATF has been historically reluctant to make formal statements about its reasons to establish a new amnesty period that the Attorney General can administratively authorize under under § 207(d) of the National Firearms Act of 1968, which is also known as Title II of the Gun Control Act of 1968. Most typically, ATF's explanation consists of a single sentence or two stating that establishing an amnesty would interfere with existing prosecutions.

At a 2000 hearing, the Subcommittee on Treasury, Postal Service, and General Government of the Committee on Appropriations, House of Representatives, requested ATF to provide the Subcommittee reasons why a new amnesty period could not be established. ATF's reasons have been reproduced on pages 26-27 of the published hearing record (click here to read them). This hearing record may be the most complete formal statement ATF has given as reasons it declines to establish a new amnesty period. The hearing also includes discussion of the amnesty issue.

In 2005, a subsequent analysis of the amnesty issue, in light of continuing problems with the accuracy and completeness of the NFRTR, was prepared and published by the Congressional Research Service (click here to read it; see pages 16-18

Finally, also of interest is the 1968 Congressional testimony of then-IRS Commissioner Sheldon Cohen about the effects on enforcement of the NFA by the Haynes decision, which invalidated the registration requirement because it conflicted with the 5th Amendment: "We had been averaging, under the national act, about 60 to 70 prosecutions per month for national act violations. Since the first of the year, when the Haynes decision was rendered, we are down to about something in excess of 40 a month. So we are talking about 35 to 40 percent in the area of prosecutions under Haynes. And, therefore . . . I would like to see this amendment to the National Act passed at the earliest practical moment." Click here to read the testimony; see pages 161-162

Commissioner Cohen's testimony may be the only known public record of the impact of invalidating the NFA's firearm registration requirement on federal law enforcement, and is significant because it refutes contentions by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), that a new amnesty period would suspend enforcement of the entire NFA.

In 1968, then IRS Commissioner Sheldon S. Cohen testifies about amending the NFA
On June 26, and July 9, 1968, then IRS Commissioner Sheldon S. Cohen testified before Congress about proposed amendments to the National Firearms Act (NFA), which were later enacted in slightly different form as the National Firearms Act of 1968, more commonly referred to as Title II of the Gun Control Act of 1968. The AOW transfer tax was proposed to be changed from $5 to $20. During 1965 firearms act hearings, the Treasury Department proposed a change in the "any other weapon" transfer tax from $5 to $10, and a change from $200 to $400 for the transfer of other NFA firearms; however, neither change was made and the transfer taxes remained $5 and $200 for an "any other weapon" and "firearm," respectively. As in the 1965 hearings, a 30-day registration period is proposed. On page 135 is a brief discussion of NFA firearms that have special interest to collectors, which was used to implement the "collector's item" provision by which NFA firearms (with the exception of a machine gun or a destructive device) may be administratively removed from the NFA because they are unlikely to be used as weapons. On page 138 is a discussion of Section 5848 of Title 53, which was a new provision designed to restrict the use of information or evidence "required to be submitted or retained by a natural person" to comply with the NFA or its implementing regulations. Section 5848 was designed more specifically to "overcome the serious problems in the administration and enforcement of the National Firearms Act created by the decisions of the Supreme Court in the Grosso v. United States, 390 U.S. 62; Marchetti v. United States, 390 U.S. 39; and Haynes v. United States, 380 U.S. 85, cases."

Also of interest is Commissioner Cohen's testimony on pages 161-162 about the effects on enforcement of the NFA by the Haynes decision, which invalidated the registration requirement because it conflicted with the 5th Amendment: "We had been averaging, under the national act, about 60 to 70 prosecutions per month for national act violations. Since the first of the year, when the Haynes decision was rendered, we are down to about something in excess of 40 a month. So we are talking about 35 to 40 percent in the area of prosecutions under Haynes. And, therefore . . . I would like to see this amendment to the National Act passed at the earliest practical moment."

This may be the only known public record of the impact of invalidating the NFA's firearm registration requirement on federal law enforcement, and is significant because it refutes contentions by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), that a new amnesty period would suspend enforcement of the entire NFA. This hearing may be cited as "Federal Firearms Legislation," Hearings before the Subcommittee to Investigate Juvenile Delinquency, Committee on the Judiciary, United States Senate. 90th Congress, 2nd Session, Pursuant to S. Res. 240, 90th Congress. June 26, 27, 28 and July 8, 9 and 10, 1968. Washington, D.C.: U.S. Government Printing Office, 1968.

 5th Amendment rights: An attorney explains why not to talk to the police, which includes ATF
Talking to the Police by Professor James Duane
It is well known that virtually all attorneys will advise their clients not to talk to the police, but it is rare to hear detailed, lengthy explanations why this is advisable by an attorney, and even rare to hear it from a police officer. In this taped video presentation, both a licensed attorney and a sworn police officer discuss why talking with the police isn't advisable, even for people who are wholly innocent of a crime which they may be suspected of committing. This video discusses how the police will seize upon a minor discrepancy or circumstancial fact unrelated to a crime, to ensnare an innocent person into a situation in which the police are able to create doubt of innocence. In these circumstances, the police are not your friend; they want to solve a crime. Anybody who has spent any time (for example) reading the hundreds of analyses of firearms cases by James Bardwell cannot help but be struck by the significant number of times that at the time ATF first approached the now-convicted defendant, the now-convicted defendant didn't have a legal problem. What happened is that the now-convicted defendant couldn't keep his mouth shut and talked himself into a violation of the law.

To view this instructive video, click here.
   

 Federal District Court cases with a significant focus on the NFRTR, 2007 to present
United States vs. Larry Douglas Friesen, Case No. CR-08-41-L, 2008, United States District Court for the Western District of Oklahoma
An expert witness questioned the validity of NFRTR data for criminal prosecutions based on his review of publicly available Government documents, in United States vs. Larry Douglas Friesen, Case No. CR-08-41-L, 2008, United States District Court for the Western District of Oklahoma. The Jury voted 7-5 for acquittal on October 1, 2008, and the case is currently scheduled to be re-tried February 9, 2009. The trial transcripts are in eight volumes, as follows (comments about selected portions of these transcripts are below).

Volume I (click here to read)
Volume II (click here to read)
Volume III (click here to read)
Volume IV (click here to read)
Volume V (click here to read)
Volume VI (click here to read)
Volume VII (click here to read)
Volume VIII (click here to read)

This case is based on ATF's belief that Mr. Freisen, a licensed criminal attorney, possessed two STEN Mark II machine guns--one that was legally registered to him, and another unregistered one to which Mr. Friesen applied the serial number of the STEN that was legally registered to him. ATF believes Mr. Friesen gave his legally registered STEN to a member of an outlaw motorcycle gang, and applied the serial number of his registered STEN on the unregistered STEN so it would match his legal paperwork. The case revolves around the technical issue of whether the STEN which Mr. Friesen is charged with illegally possessing was manufactured by Charles Erb or not; ATF contends it was not; and Mr. Friesen contends the STEN is the same one he originally bought in February 1996. The background of the case is summarized in Volume I, pages 15-28 (click here to read it). The Government apparently never wanted this case to come to trial, as evidenced by dumping some 1,600 pages of Discovery material on the defense just 2 days before trial, about which Federal District Judge Tim Leonard made clear his displeasure. Judge Leonard also repeatedly questioned ATF's practice of producing documents exclusively for trial (which the Assistant United States Attorney (AUSA) characterized as "copies, your Honor") rather than original business documents. This practice worked against ATF when defense counsel brought Dr. Fritz J. Scheuren, a nationally and internationally recognized expert on statistics and administrative records, to testify about the validity of data from the National Firearms Registration and Transfer Record (NFRTR). The reason is that Judge Leonard overrode the Government's objections that it had not been provided copies of documents and reports in advance for study, noting that it was the Government's turn to take that on the chin because of its conduct toward the defense. The result is that the AUSA was unprepared to deal with Dr. Scheuren's testimony.

The NFRTR was invoked in this case, in part, because ATF presented one Form 2 dated May 14, 1986, as the birth certificate for a STEN Mark II machine gun bearing serial number E683, manufactured by Charles Erb. In response to a Discovery motion by the defense, ATF also produced a Form 2 dated April 20, 1986, bearing identical serial numbers (click here to see each of these Forms 2). During direct and cross-examination, NFRTR Custodian Denise Brown was unable to explain the differences between the Forms 2, but said she preferred to use the one dated May 14, 1986 (to read Custodian Brown's testimony, click here for pages 30 to 77 of Volume I). Defense did not question Custodian Brown about the new NFRTR form entitled ""Firearms Inspection Worknote: NFA Inventory Discrepancies" (click here here to read it), bearing the date 2006, was not introduced and discussed, and the current accuracy of the NFRTR was not established (e.g. "Since you don't know, does anybody at ATF know how accurate and complete the NFRTR is? Who would that be? How can we know these NFRTR certifications you are making are accurate? When was the last time the NFRTR was completed audited?"). Even with redactions made during the FOIA process, the "Worknote" discloses its objective to address discrepancies between the NFRTR and the records of Special Occupational Taxpayers (SOTs) during routine compliance inspections. Failure of the NFRTR Custodian to (for example) satisfactorily define the term "discrepancy," describe how data gathered in the "Worknote" is routinely used, demonstrate an awareness of the procedures for correcting errors or discrepancies, and so forth, would diminish the credibility of the Government.

Mr. Erb testified that ATF rejected the receivers he manufactured as noted on the Form 2 dated April 20, 1986, as incomplete, and that an ATF Inspector required additional work to be done to render them complete. The Form 2 dated May 14, 1986, has "x" notations by each serial number that Mr. Erb testified were placed by the ATF Inspector (click here to read Mr. Erb's testimony on these points on pages 581 to 586 of Volume IV).

The Government filed a motion in limine to exclude Dr. Fritz J. Scheuren as an expert witness, a motion that was overruled. Judge Leonard explained: " . . . two things persuade me to allow the testimony and overrule the motion. One is, of course, the duplicate records of Exhibit 100, and then the government's record of the same firearms, which both appear -- I've never heard satisfactorily explained why there were two of those records. Secondly, the other relationship to the issue over the accountability of the other guns that are on the government's chart. And thirdly, the issue, the fact that the government has relied almost exclusively on many of its exhibits which are records from the [NFRTR]." To read Judge Leonard's remarks, click here for pages 1011 and 1012 of Volume VI).

Dr. Scheuren testified: "I find the existing [NFRTR] records are quite useful in an exploratory setting, but they are not accurate enough by themselves to be used in a confirmatory way," including "for purposes of prosecution" (click here to read his full testimony, on pages 1016 to 1042 of Volume 6). NFAOA readers note: To see copies of the audit Work Papers Dr. Scheuren reviewed, see the "Resources" page section entitled "ATF and Treasury Department Inspector General investigations and audits of the NFRTR, and related issues" and the subsection entitled "Unpublished audit work papers from 1998 Treasury Department Inspector General Reports on the NFRTR," particularly Work Paper Bundles F and H.

Several parts of Dr. Scheuren's testimony merit the detailed comments below.

1. First, Dr. Scheuren testified that the accuracy and completeness of the NFRTR could not be reliably determined from a 1998 audit report by the Treasury Department Inspector General, because "What happened is the original 1998 report had an 18 percent and [ATF] looked at it and said it was too high. And that was based on a set of predetermined critical variables. And they [the Treasury Department Inspector General's auditors] went back in and change the critical variables that they were using based on the error rate they had in order to bring the error rate down to something under five percent." Dr. Scheuren further testified " . . . in fact, their reworking of the original 1998 data is data fishing. And you cannot make a statement about the reliability, the probability of your being right with that data fishing, that exercise." Note bene to the attorneys who are reading this and tempted to lift it verbatim for their next case: Dr. Scheuren was referring to Discovery Sample data from Form 4467 (not the entire NFRTR, but the AUSA didn't know that because he hadn't been provided copies of the audit reports), and that was not discussed during his testimony. The lesson is there's no substitute for grunt work --- an attorney who lifted this exchange without doing anything else, and used it in a court case, would likely be made to look quite foolish by the AUSA, who has most certainly read this sentence, a consequence of ATF monitoring this Internet site. Worrying that ATF won't see this is like worrying that the Milky Way is going to go out.

2. Second, defense counsel failed to challenge the AUSA's contention, in both examination of Dr. Scheuren and in closing arguments, that the NFRTR data are just fine. In the case of Dr. Scheuren, the AUSA asked him if he was aware there was such a statement in the June 2007 report by the Department of Justice Inspector General, to which Dr. Scheuren replied in the affirmative, and could not go beyond because he was not asked a question. Importantly, at closing, the AUSA made the following statement to the Jury, beginning with a quotation from the report: "'We did not find evidence that errors in the ATF records caused inappropriate seizure or criminal charges against NFA weapons owners or federal firearms licensees.' So this is much to do about nothing, the smoke and mirrors behind the case. He says if you sponsor it it's okay, we have witnesses to sponsor it, and he says even their own report concludes there was never a problem at all, ever, ever, ever, with NFA documents." (see page 1532, Volume VII; click here to read it). The June 2007 report (click here to read it) states, on page iii, " . . . we did not find evidence that individual weapons owners or federal firearms licensees had been sanctioned or criminally prosecuted because of errors in the [NFRTR] database . . . "

This statement is misleading (and may have unfortunately contributed to some Jurors voting to convict) because of the implications of page 31 of the 2007 report, where the Department of Justice Inspector General determined: "If the NFA weapons owner [sic] can produce the registration paperwork, ATF assumes the error is in the NFRTR and fixes it in the database." The AUSA's statement is misleading because the 2007 report fails to address what happens when an individual has lost his or her copy of an NFA firearm registration document, and ATF has also lost its copy of the document. Are "criminal charges against individuals or licensees" not made in any of these instances? Are no firearms seized and forfeited, or "voluntarily abandoned" to ATF? The 2007 report does not say.

3. The AUSA sought to obtain "confirmatory" information about the STEN in question, by asking if the transfers of the firearm could be verified at each stage, he would consider the NFRTR to be accurate for that particular firearm, and Dr. Scheuren replied in the affirmative. On redirect, defense counsel said " . . . although you didn't come here to testify about this, if there is a break in the link, for example, one of these witnesses didn't testify, would that cause you a concern from a statistical standpoint? A. You're using the word "statistic" in a casual way. My answer is that if there was gap in the evidence, yes. If there was a chain of custody break, yes." This exchange is useful because it underscores the AUSA's lack of understanding of the implications of Dr. Scheuren's testimony, and also from a technical standpoint on the use of the term "statistic." (There are several exchanges between Dr. Scheuren and the AUSA in Dr. Scheuren's testimony that demonstrate the AUSA didn't understand what Dr. Scheuren was talking about.)

The Friesen trial is also notable for what was omitted, given the NFRTR data upon which the Government relied. There are additional findings in the June 2007 report that could establish reasonable doubt about the validity of certifications produced for criminal prosecutions by the NFRTR Custodian. The report states ". . . continuing management and technical deficiencies contribute to inaccuracies in the NFRTR database. For example, NFA Branch staff do not process applications or enter data into the NFRTR in a consistent manner, which leads to errors in records . . . [and] [f]urther, the NFRTR's software programming is flawed and causes technical problems . . . [and] [t]he lack of consistence in procedures and the backlog in reconciling discrepancies, combined with the technical issues, result in errors in the records, reports, and queries produced from the NFRTR." Finally, the 2007 report states: "These errors affect the NFRTR's reliability as a regulatory tool when it used during compliance inspections of federal firearms licensees." How do these findings bear on the results of compliance inspections by ATF, including the one undergone by Mr. Friesen? This is not a topic ATF would like to see explored by asking ATF employees questions under oath in Federal District Court, much less ATF managers who are responsible for managing, administering, and maintaining these records.

Finally, it would seem appropriate for defense counsel in such cases to conduct vigorous Discovery, which would include requesting unredacted copies of the Work Papers for the June 2007 "review" of the NFRTR by the Department of Justice Inspector General. Copies of these Work Papers may invalidate NFRTR certifications, through questioning along the lines identified and testified to by Dr. Fritz J. Scheuren.
   

United States vs. Dario Giambro, Criminal Number 07-41-P-S, 2007, United States District Court, District of Maine
Defense attorneys seeking to invalidate the NFRTR should study United States vs. Dario Giambro, Criminal No. 07-41-P-S, United States District Court, District of Maine (2007). Transcripts disclose the hazards of (1) a Federal District Judge not fully understanding the NFRTR issues in the absence of case law, law review articles, and other guidance, even after being provided Government audit and other reports by Inspectors General that determined there are serious errors in the NFRTR, (2) defense counsel not introducing some relevant evidence, or lines of questioning, (3) an AUSA who didn't understand implications of errors in the NFRTR, yet successfully avoided being contradicted by information in the public record, (4) a potential Expert Witness whom the Judged excluded because of concerns his testimony was based on speculation and conjecture, and was not independent because of his past public criticisms of the NFRTR and ATF, and (5) failure of the defendant to allege that the Model 1908 Marble's Game Getter Gun could have been registered by his father, from whom he inherited it, and to fully participate in his own defense. The firearm could have been registered by the defendant's father, who instructed him to "always keep this paper" with the gun, referring to a certificate that went missing after the police raided the defendant's home and removed all of his firearms (click here); ATF could have lost or destroyed its copy of the registration; that while the defendant apparently stated that he had never registered the Game Getter (click here to read ATF record) and one of his attorneys, misunderstanding the NFA, attempted to register the Game Getter on the defendant's behalf (click here to read it), it is well known that ATF usually bends over backwards to ensure that NFA firearms that are registered to deceased persons, which have been kept in the family line of inheritance, are registered to lawful heirs without incident; and although the defendant was acquitted in state court various charges, ATF later decided to bring felony changes against the defendant, apparently because ATF believed the defendant should not own firearms because of a mental condition. If the latter was the objective, one might ask if it could have been legitimately realized by other means than a criminal trial involving a rare collector's-item firearm that was not involved with any criminal activity. Was the Game Getter originally registered to Mr. Giambro's father? We have only ATF's testimony (at trial) that the Game Getter was not registered to anybody, and there is no objective means of verifying the truthfulness of ATF's testimony.

The foregoing circumstances contributed to what may be bad case law because (1) the defendant was convicted, (2) the conviction was upheld by the Court of Appeals, which may not have taken the case seriously, (3) the accuracy and completeness of the NFRTR was not adequately challenged, although valid and reliable evidence was presented, and (4) the Judge, AUSA and defense counsel may not have fully understood how the NFRTR works or the implications of missing records, and that nobody knows how accurate the NFRTR data are. Because the Giambro case illustrates the importance of attention to legal details, this writeup will focus on what seem to be critical points, and why the points seem to be critical.

On September 25, 2007, Dario Giambro of Auburn, Maine, was convicted of the felony charge of Possession of Unregistered Firearm, a Model 1908 Marble's Game Getter Gun. The case is United States vs. Dario Giambro, Criminal Number 07-41-P-S, United States District Court, District of Maine. Before trial, on August 17, 2007, Chief United States District Judge George Z. Singal denied motions in limine to allow testimony by Eric M. Larson as an Expert Witness on the NFRTR, and in seeking to have the NFRTR declared insufficiently reliable for purposes of criminal prosecution (click here. Judge Singal determined that Mr. Larson's statements "largely contain conjecture, speculation, and lack any scientific basis" (click here to read Judge Singal's order), referring to a Declaration dated July 18, 2007, by Mr. Larson (click here to read it).

Mr. Larson cited nearly two dozen Exhibits in his motion in limine testimony. For ease of reference, a version of Mr. Larson's testimony has been prepared for NFAOA readers in which each Exhibit he cites is inserted on the page following. The transcript has not been changed; the only thing that is different from the version above is that it contains a copy of each Exhibit that Mr. Larson cites. Click here to read the supplemented version of the transcript of Mr. Larson's motion in limine testimony.

Judge Singal cited United States vs. Rith (164 F.3d 1323, 10th Cir. 1999) as the most reliable evidence of the reliability of the NFRTR (click here to read Rith), which cites a 1996 audit of the NFRTR by the Audit Services Division, Department of the Treasury, that reported a "critical-error" rate of "no more than 1.5%." Judge Singal rejected what he termed "outdated" records, referring to a partial audit of the NFRTR by the Treasury Department Inspector General published in two audit reports in 1998. Importantly, the Treasury IG published audit results indicate "critical error" rates of 4.3% for Form 4467, 8.4% for "Letter" and 7.9% for "Other" NFRTR records, and unpublished Work Papers from the 1998 audit disclose that Treasury IG auditors initially found an 18.4% "critical error" rate for Form 4467; the results for "Letter" and "Other" categories were redacted completely.

What happened?

Because Judge Singal's August 17, 2007, denial was without prejudice, defense petitioned the court September 5, 2007, to bring Eric M. Larson to the Giambro trial for a motion in limine hearing (click here to read it. On September 24, 2007, Mr. Larson introduced nearly two dozen exhibits he cited as evidence to support his belief that the NFRTR is inaccurate and incomplete and, therefore, unreliable; virtually all the Exhibits were documents created by the Government. Mr. Larson testified he observed discrepancies in annual NFRTR transaction data, such as Form 4 (in which up to 625 Forms 4 may have been added), because the number of transactions reported for past years would change from year to year, giving the appearance that ATF could be adding registration documents to the NFRTR to replace documents that ATF lost or destroyed. Mr. Larson also testified the Treasury Department Inspector General determined in its 1998 report that persons working at or for ATF had destroyed NFA documents, but the number and type could not be determined. While the Treasury Department Inspector General declined to investigate Mr. Larson's allegation that ATF was adding firearm registration documents back into the NFRTR, Mr. Larson testified that the Department of Justice Inspector General determined, in a June 2007 "review" of the NFRTR, that "If the NFA weapons owner can produce the registration paperwork, ATF assumes the error is in the NFRTR and fixes it in the database" (click here and go to page 31 of the 2007 report). Mr. Larson testified that a 1979 Memorandum by the Criminal Division, Department of Justice, determined if "a particular individual or weapon is registered" in the NFRTR and ATF finds that its "files are missing," then "the only solution would be to declare another amnesty period" (click here to read the Memorandum; see page 4). The AUSA in cross-examination, stated that ATF was doing a good job by adding missing registration documents back into the NFRTR (indicating a lack of understanding of the implications, because the AUSA was reinforcing Mr. Larson's testimony), but sought to diminish the number of lost documents, and said essentially that mistakes happen. In response to the AUSA's request to identify cases he knew of personally in which ATF lost registration documents, Mr. Larson identified only two cases (involving Capt. Mont Lamar Mendenhall, and Noel Napolilli). When Judge Singal interjected a question about his further knowledge that documents had been destroyed, Mr. Larson failed to identify the finding the determination by the Treasury Department Inspector General in one of its 1998 reports that NFA documents had been destroyed, and their number and type could not be determined. Defense counsel did not redirect. In affirming his earlier decision to exclude him as an Expert Witness, Judge Singal again characterized Mr. Larson's testimony as mainly based on conjecture and speculation, possibly because in his testimony, Mr. Larson acknowledged (as he had in Congressional testimony and statements, as well as his testimony in the Giambro case) that there could be other explanations for the appearance of ATF adding NFA documents, such as misfiling data under the incorrect form, recording an incorrect year for the transaction and refiling under the correct year, and so forth, and that only a complete audit --- which the Treasury IG failed to do --- could settle the question. Importantly, Judge Singal chose to disregard the most recent evidence Mr. Larson cited; namely, that the Department of Justice Inspector General determined that ATF is adding firearm registrations to the NFRTR, as stated in its June 2007 report, which supported Mr. Larson's testimony that ATF may have been adding registration documents to teh NFRTR. Judge Singal may also have been influenced by the failure of the defendant to directly question the accuracy and reliability of the NFRTR, and been unsure of the relevancy to the Giambro case; however, he allowed the defense to argue the possibility the records could be in error. Click here to read the transcript of the September 24, 2007, motion in limine hearing.

At trial on September 25, 2007, it was only at the last minute that Judge Singal ruled the defense could introduce the two 1998 Treasury Department Inspector General reports, and the 2007 Department of Justice Inspector General "review" of the NFRTR (click here for Part I and click here for Part 2). The defense was unable to convince the Jury that the reports were sufficient to exonerate the defendant of the charges against him. Trial transcripts disclose instances where evidence about the accuracy and completeness of the NFRTR could have been introduced, and misleading statements by the AUSA. For example, during direct and redirect examination of ATF expert witness Gary N. Schaible, questions about the current accuracy and completeness of the NFRTR were not fully developed; for example, the new NFRTR form entitled ""Firearms Inspection Worknote: NFA Inventory Discrepancies" (click here to read it), bearing the date 2006, was not introduced and discussed, and the current accuracy of the NFRTR was not established. Even with redactions made during the FOIA process, the "Worknote" discloses its objective to address discrepancies between the NFRTR and the records of Special Occupational Taxpayers (SOTs) during routine compliance inspections. In closing arguments, the AUSA referred to a statement in the 2007 Department of Justice Inspector General report "that errors in NFRTR records have not resulted in appropriate criminal charges against individuals or licensees," rendering defense counsel's assertions about inaccurate records legally meaningless for purposes of the trial. The AUSA's inference is misleading because the 2007 report fails to address what happens when an individual has lost his or her copy of an NFA firearm registration document, and ATF has also lost its copy of the document. Are "criminal charges against individuals or licensees" not made in any of these instances? Are no firearms seized and forfeited, or "voluntarily abandoned" to ATF? The 2007 report does not say. Because the AUSA gets the last word, defense counsel was unable to rebut. The Court of Appeals decision denying Mr. Giambro's appeal (click here to read it) is no doubt result of some combination of the Giambro case being flawed; of Judge Singal not understanding the implications of errors in the NFRTR; and a less-than-perfect understanding of the NFA and NFRTR issues by all parties to the case. To read the defendant's appeal, click here.

There has been a recent Internet blog about the Giambro appeal, copied below from http://appellate.typepad.com/appellate/evidence/ (visited December 26, 2008):

October 02, 2008

CA1: First bends to help government prove negative in antique gun registration case

US v. Giambro, No. 08-1044 affirms a conviction for possessing an antique gun. (He was acquitted of a number of state charges.)

The least interesting issue is under 26 U.S.C. 5861(d), where the court holds that the defendant need not have specific knowledge of the registration requirement, but just knowledge of the statutory elements of the guns subject to the registration requirements.

More interesting is the admission of the ATF's "Certificates of Nonexistence" of a registration record. The maker of the certificate testified. The First's analysis isn't that satisfactory. It basically says "other circuits have upheld their use" even though there used to be problems.

Finally, and without much analysis, the First says that it was fine for the District Court to exclude the testimony of an expert witness that had done some statistical analysis on the reliability of the ATF's system of gun registration. Because the First speaks in broad, general terms (and throws around words like "Daubert," it doesn't seem like it was taking this issue seriously.
   

 CNN's Lou Dobbs Tonight reports on the Olofson case and ATF abuses
Lou Dobbs reports on the Olofson case and ATF
On March 13, 2008, Lou Dobbs -- the anchor and managing editor of CNN's Lou Dobbs Tonight -- reported on the conviction of David R. Olofson of Berlin, Wisconsin, for the illegal transfer of a machine gun. As Mr. Dobbs reports, Mr. Olofson had lent an AR-15 semiautomatic rifle to a person who was interested in joining the National Guard. While firing the rifle at a public gun range -- he had previously fired some 800 rounds through the rifle without any problems -- the gun malfunctioned, fired two rounds and then jammed. Law enforcement officers at the range questioned the man, referred the case to ATF, and ATF charged Mr. Olofson with the illegal transfer of a machine gun; the Assistant United States Attorney argued that a "malfunction" was no defense; and Mr. Olofson was convicted by a jury (click here to view the report).

The following night, March 14, 2008, Mr. Dobbs further reported details of the Olofson case, noting that when ATF tested the AR-15, ATF reported that the AR-15 was not a machine gun; however, the ATF Special Agent in charge of the case requested that ATF re-test the AR-15 using ammunition with more sensitive primers, and after the AR-15 fired multiple rounds and jammed, ATF took the position that the AR-15 was a machine gun. Mr. Dobbs repeatedly expressed concerns that charging and convicting Mr. Olofson under these conditions was wrong, and that ATF had made a mistake in doing so (click here to view the report). In an interview with Mr. Dobbs, firearms expert Len Savage, President, Historic Arms LLC of Franklin, Georgia, a expert witness in two recent federal prosecutions involving firearms, stated that the reason for this problem is that ATF has no firearms testing standards; that each firearms test is done individually; and that the lack of scientific testing standards is a serious problem. Mr. Dobbs noted that proposed legislation under H.R. 1792 would require ATF to videotape all firearms tests, and showed a clip of ATF firearms examiner Michael J. Cooney testing a rifle under similar conditions (that particular firearm had broken internal parts and had malfunctioned; defendant John Glover's conviction was ultimately dismissed with prejudice for that reason, following its exposure by Mr. Savage; click here to read about the Glover case).

The foregoing two reports are not the end of this story. Mr. Dobbs stated that future reports will feature interviews with or about ATF so that questions about why Mr. Olofson was targeted for prosecution inappropriately can be answered, as well as what the Congressional delegation from Wisconsin and the National Rifle Association has to say about the injustice perpetrated against Mr. Olofson, and how the problem of inappropriate prosecutions involving malfunctioning firearms can be corrected.
   

Olofson case materials posted on TheHighroad.org, July 5, 2008
The case of David R. Olofson of Berlin, Wisconsin, who was convicted in Federal District Court in 2008 for illegally transferring a machine gun, is currently imprisoned and serving a 30-month sentence, has drawn national interest among both the NFA community and the larger community of firearms owners, particularly those who own semiautomatic AR-15s. In the interest of providing NFAOA readers public documents in this case, with sufficient comments as to inform the reader about the topics of the documents, the information below has been copied from TheHighroad.org, where Zedicus, Senior Member, posted it on July 5, 2008. This page will be updated as necessary.

Source: The below is copied from http://thehighroad.org/showthread.php?t=375570 (visited July 9, 2008)


Ok, this is the Cliff Notes Version of the 88 Page Topic on AR15.com concerning US v Olofson.
Located here: http://www.ar15.com/forums/topic.html?b=1&f=6&t=507483

Ok, Commonly Known Facts First.

  • Rifle (AR15) was Loaned to Kernaki
  • Rifle Doubled/Tripled twice at the range and Jammed after each
  • Police Confiscated the Rifle claiming it was a Machinegun
  • BATFE Raided David Olofson's Home after being notified by local PD.
  • BATFE Claimed the 20+ Year old Olympic Arms AR15 had been modified to fire Full-Auto
  • BATFE Disallowed Defense Experts from examining the rifle except from a distance (approx 6 feet)
  • BATFE claimed that a 5 second video of a BATFE FTB Agent Firing a rifle full-auto was proof
  • BATFE claimed M16 Bolt, Carrier, or Hammer in an AR15 = Machinegun
  • BATFE claimed and I Quote "Malfunctions can be classified as illegal Machineguns because they are not Specifically Exempted in the law"
  • When asked if that applied a Double Barrel Shotgun that fired both barrels in one trigger pull the BATFE answered "Yes"
  • BATFE Blocked Defense and Judge from Information that would have been beneficial to the Defense's Case Claiming it Was "Privileged Tax Information" which It was Not
  • BATFE Ignored a Federal Judge's order to Produce Documents requested of them
  • BATFE Claimed Prior "Dropped Firearms Charges" against mr Olofson made mr Olofson a "Convicted Felon" (old case over Legal Open Carry that was thrown out) Illegally in possession of Firearms
  • BATFE charged mr Olofson with "Illegal Transfer of a Machinegun"

It should also be noted that the BATFE admitted to "Paying" mr Kernaki (guy who borrowed the rifle) to Testify (why?), who was caught Perjuring himself on multiple occasions during his Testimony.


Now on to the Nitty Gritty, the Documents that you "Haven’t Seen".
Local PD Report

2nd Local PD Report | Pt2

Mr Kernaki’s Afidavit/Statement | Pt2

The Warrant

Logof Evidence Seized | Pt2 | Pt3 | Pt4 | Pt5

Make note that mr Olofson reported that the electronics were dropped off "INSIDE" his house while he and his family were out and the doors were locked, when they got back the doors were unlocked and open, and the electronics piled in the main room.

BATFE Criminal Complaint Form:
Pt1 | Pt2 | Pt3 | Pt4 | Pt5

BATFE NFA Search Paperwork
http://img.photobucket.com/albums/v5...f762/TMP24.jpg
http://img.photobucket.com/albums/v5...f762/TMP25.jpg
http://img.photobucket.com/albums/v5...f762/TMP26.jpg
http://img.photobucket.com/albums/v5...f762/TMP27.jpg

BATFE FTB Report
http://img.photobucket.com/albums/v5...20Stuff/57.jpg
http://img.photobucket.com/albums/v5...20Stuff/58.jpg
http://img.photobucket.com/albums/v5...20Stuff/59.jpg

Discovery Requests
http://img.photobucket.com/albums/v5...2/discreq1.jpg
http://img.photobucket.com/albums/v5...2/discreq2.jpg
http://img.photobucket.com/albums/v5...2/discreq3.jpg


2nd Discovery Request (BATFE Ignored the first)
http://img.photobucket.com/albums/v5...2/Dec_10_1.jpg
http://img.photobucket.com/albums/v5...2/Dec_10_2.jpg
http://img.photobucket.com/albums/v5...2/Dec_10_3.jpg

Motion to Compel Discovery (BATFE Still Ignoring Requests)
http://img.photobucket.com/albums/v5...af762/MTC1.jpg
http://img.photobucket.com/albums/v5...af762/MTC2.jpg
http://img.photobucket.com/albums/v5...af762/MTC3.jpg

Motion to Compel was denied on claims by the BATFE that it was "Privileged Tax Information" which it is not.
(Proven here http://www.nfaoa.org/documents/ATFmemoTaxInfo6103.pdf )

Motion to Dismiss
http://img.photobucket.com/albums/v5...ntodismiss.jpg
http://img.photobucket.com/albums/v5...todismiss2.jpg

Motion for Acquittal
http://img.photobucket.com/albums/v5...762/TMP144.jpg
http://img.photobucket.com/albums/v5...762/TMP145.jpg
http://img.photobucket.com/albums/v5...762/TMP146.jpg
http://img.photobucket.com/albums/v5...762/TMP147.jpg
http://img.photobucket.com/albums/v5...762/TMP148.jpg
http://img.photobucket.com/albums/v5...762/TMP149.jpg

THE Document the BATFE Removed from their own Website
http://img.photobucket.com/albums/v5...762/Open_1.jpg
http://img.photobucket.com/albums/v5...762/Open_2.jpg
http://img.photobucket.com/albums/v5...762/Open_3.jpg

Affidavits
Kelly Harris
David L Olofson | Pt2
John Horkan
Patricia A Olofson
Compaire
Michael R Berg
Cadance M Olofson | Pt2

Transcripts

http://www.davidkopel.com/2A/Olofson...TRANSCRIPT.pdf
http://www.davidkopel.com/2A/Olofson...TRANSCRIPT.pdf
http://www.davidkopel.com/2A/Olofson...TRANSCRIPT.pdf

e-mail the BATFE Claimed was proof David Olofson was Dealing in Firearms without an FFL
http://img.photobucket.com/albums/v5...af762/16-1.jpg
http://img.photobucket.com/albums/v5...af762/16_2.jpg

Appeal
http://img.photobucket.com/albums/v5...f762/stay1.jpg
http://img.photobucket.com/albums/v5...f762/stay2.jpg
http://img.photobucket.com/albums/v5...f762/stay3.jpg
http://img.photobucket.com/albums/v5...f762/stay4.jpg
http://img.photobucket.com/albums/v5...f762/stay5.jpg
http://img.photobucket.com/albums/v5...f762/stay6.jpg
http://img.photobucket.com/albums/v5...f762/stay7.jpg
http://img.photobucket.com/albums/v5...f762/stay8.jpg
http://img.photobucket.com/albums/v5...f762/stay9.jpg
http://img.photobucket.com/albums/v5...762/stay10.jpg
http://img.photobucket.com/albums/v5...762/stay11.jpg
http://img.photobucket.com/albums/v5...762/stay12.jpg

Len Savage Interview mp3
http://jpfo.org/media-sound/len-savage-01-10-08.mp3

Live Fire Interview with David Olofson
http://mediadownload.soundwaves2000....e/lf061408.mp3

Lou Dobbs on US v Olofson
Video 1 | Video 2 | Video 3 | Video 4 | Video 5

 Citizen's Guide to using FOIA and Privacy Act to obtain Government Documents, and Example Letter
Citizen's Guide to using FOIA and Privacy Act to obtain Government Documents
While the Freedom of Information Act (FOIA) is a valuable tool for obtaining Government documents, it is often misunderstood. For example, the FOIA "provides that a requestor may ask for records rather than information. This means that an agency is only required to look for an existing record or document in response to a FOIA request. An agency is not obliged to create a new record to comply with a request. An agency is neither required to collect information it does not have, nor must an agency do research or analyze data for a requestor" (see page 7). On the other hand "The Privacy Act applies to personal information maintained by agencies in the executive branch of the Federal Government. The executive branch includes cabinet departments, miliary departments, govenrment corporations, government controlled corporations, independent regulatory agencies, and other establishiments in the executive branch. Agencies subject to the Freedom of Information Act are also subject to the Privacy Act. The Privacy Act does not generally apply to records maintained by State and local govenrments or private companies or organizations" (see page 22). Thus, to obtain records of personal information, requestors must use the Privacy Act. There are various limitations on FOIA requests, but the "Resources" page of the NFAOA web site consists of a large number of documents that were obtained from ATF via the FOIA mechanism, and having the information has benefited many people be contributing to the awareness of ATF's activities. This document may be cited as "A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Govenrment Records." 106th Congress, 1st Session, H.R. Report No. 106-50. Union Calendar No. 30. Washington, D.C.: U.S. Government Printing Office, 1999.
   
Example letter to obtain historical information on an NFA firearm
This is an example letter that the current owner of an NFA firearm can use to request historical information, such as the date of original registration, about the firearm. to use to request historical information on an NFA firearm. Note that you must (1) have the FOIA inquiry letter (click here for an example) notarized prior to sending, or (2) complete and enclose the Department of Justice Certification of Identity form (click here for a copy) with the FOIA inquiry letter, or ATF will not process your FOIA request.

ATF has developed an alternative procedure for FAXing such requests to the Disclosure Division; click here to access a different letter than can be used as a model for the FOIA request.

ATF has a FOIA link on its home page (www.atf.gov); also, be sure to read the Department of Justice FOIA Reference Guide at http://www.usdoj.gov/oip/04_3.html.

Some people have doubted the value of doing a FOIA on an NFA firearm, believing the information is too limited to be of any real consequence, historically or from the perspective of learning about the firearm. While the personal identifying information of previous registrants is "tax return information" protected from disclosure, the results of a FOIA can and do serve as legitimate protection on establishing the provenance of an NFA firearm. It is becoming more evident, as the demand for quality machine guns continues to outpace the supply, that knowing exactly what gun one has is critical from many perspectives.

From time to time, Bob "Bubba" Naess of Black River Militaria, Cavendish, Vermont, posts information ib various boards about how valuable FOIA information can be in (for example) establishing Curio or Relic status for a machine gun. With his kind permission, NFAOA brings Mr. Naess' thoughts and many years of experience to its readers in his comments below.

There is a wealth of information available from an FOIA search. First is the date of registration, and ATF or other Form of the original registration, if the firearm is in the National Firearms Registration and Transfer Record (NFRTR). For some FOIA requestors, that's the first thing they find out: there is no record of the original registration registered NFA item for which they have approved paperwork. Or they might find out there is no record of the serial number, again for a machine gun which they have correct, approved paperwork.

The date of registration can confirm that the gun is Curio or Relic or an original factory machine gun. In combination with the date, the original registration type will reveal the circumstance under which the machine gun was originally registered. There are half a dozen or more ways it could have been registered between 1934 and prior to the end of the Amnesty of 1968 (which lasted from November 2 to December 1, 1968), some of which are very interesting. It might reveal a date of registration that confirms that it is a WWII bringback machine gun, or it was registered during the time of the commercial DEWAT collector's frenzy of the middle 1950s, or even right after beer wars, or?

The original registration can reveal that the gun was registered after the end of the 1968 Amnesty, when the registrant believed the machine gun was a Curio or Relic or original factory machine gun, by the date of registration and form used to register the original machine gun, it is not a Curio or Relic. This is not uncommon. Date and form can reveal that an alleged registered and reactivated DEWAT is in fact a machine gun that was mistakenly or deliberately falsified as a registered DEWAT, when in reality it was registered by Form 2 post 1968. Also, not uncommon. The original registration form might reveal that a remanufactured machine gun was registered by an individual on a Form 1, post 1968, rather than by a Class II manufacturer. The original registration might reveal that the model of the machine gun is different from that listed on their current paperwork, or the caliber and other specifications. It might reveal that the machine gun is a completely different machine gun, which has been substituted for the machine gun orignally registered. Or, everything might be correctly and exactly the same as the owner's current paperwork.

A FOIA search can mean the difference between getting the full, legitmate value for a machine gun when it is offered for sale, or much less due to the compromised status of the machine gun as disclosed by the registration information in the NFRTR. A FOIA is valuable to confirm that a Curio or Relic machine gun is exactly that, which can make the difference between a sale and no sale. A FOIA, on occasion, has revealed that an allegedly fully transferable machine gun is actually a pre-May sales sample, or even a post-May sales sample.

For a registered DEWAT, copies of subsequent transfers can reveal if the correct paper trail was was observed for reactivation. Copies of subsequent transfers can also reveal if the machine gun was only owned by one or two people, or twenty. A history of a number of Form 5s might reveal that the machine gun has been repaired a number of times, or been in an estate, or in a Police Department inventory.

FOIA is the only access that the private owner has to learn anything about the recorded history of the weapon and, scant as it may appear at the outset, there is a great deal that can be learned from a search, for better or worse.
   

 ATF Special Agents prepare for million dollar lawsuits nationwide, consider class actions
ATF Special Agents question truthfullness and integrity of ATF management, consider legal actions
This document was first posted on the Internet by David T. Hardy, in his blog Arms and the Law (see http://armsandthelaw.com/) on September 30, 2007.

Readers should understand that the author of article referred to in the document that Mr. Hardy posted ("ATF Under Seige," by Erik Larson, published in Time magazine on July 24, 1995) is not the same Eric M. Larson who has encouraged ATF, via Congressional testimonies and statements from 1996 to 2001, to render the NFRTR accurate and complete.

Mr. Hardy is a former attorney for the U.S. Department of the Interior, and brings a D.C. insider's perspective to the ATF situation. Mr. Hardy's blog entry states, and NFAOA quotes him exactly, as follows:

Posted by David Hardy - 30 September 2007 09:49 AM
I've received the attached pdf file (small, 134K) from someone in the know. It details ATF agents' complaints regarding how managers are conducting themselves. Here are a few snippets:

" Field agents have attempted to challenge the un-ethical, and illegal actions of field managers through various means in recent years only to meet with retaliation so destructive it almost inevitably results in the challenges or allegations being withdrawn."

" Fear of ATF leadership has replaced transparency. Lack of trust and the absence of good faith in trying to resolve these issues have caused a growing number of Agents to rely upon legal means to invoke the protections and seek redress. Record numbers of EEOC, OIG, OSC, whistleblower and internal grievances face the new management team. Requests for congressional intervention by Agents across the country..."

"The EEOC complaints over the last 2 years number in the hundreds. The overwhelming percentage of which contain allegations of retaliation. "

" First impressions in the field are that Acting Director Michael Sullivan is a competent and professional leader who possesses the skill to lead the Bureau of ATF&E. However, he continues to act on filtered information from those who have created these problems. These problems and those responsible must be dealt with before the Bureau can restore trust in it management team. With the appointment of Deputy Director Ronnie Carter and Assistant Director Billy Hoover, the signal was clear. The intent is/was to restore ethical and professional leadership to the Bureau. Perhaps the problems are too significant to place on the shoulders of 3 men, or maybe the Bureau is beyond repair. Either way, the complaints continue as does the retaliation, abuse of authority and the climbing number of EEOC, OSC, OIG and internal grievance complaints."

Having worked in the bureaucracy, I can see the comment about the incoming director. The guy on top may be good, but he knows only what his assistant directors tell him, and they know only what the guys below them tell them, etc., etc. At each stage of this, information is filtered to remove bad news, protect your unit, protect your buddies, etc.. If you send up info that makes your unit look bad -- that's gonna hurt you when your superior does your yearly evaluation, right? By the end of the filtration, the guy in charge hears nothing but "Everything is being run perfectly, and there are no problems, and anyone who managed to get your ear about problems is a lying sack of offal." Then of course they hunt down the guy who talked. He's not a team player. He makes his bosses look bad. Jack him around, transfer him around, seek out excuses to give him a bad evaluation, maybe see if you can tag him with misconduct (hmmm... did he use his official car for a grocery run?).

The greatest fear of mid-level is that the boss may get unfiltered information. At Interior I was a simple staffer. Even my secretary didn't work for me -- she reported, like me, to my boss. Yet one day we received written orders that if the Secretary of Interior called us to ask for data on a legal case, we were to refuse to talk to him and tell him to go thru channels. (The order was given, and stuck, because our ultimate boss had in fact better White House connection than the Secretary. Our ultimate boss was a good guy, not a bureaucrat, so I'd wager the mid-level folks had gone to him with horror stories about the Sec. becoming a loose cannon if he got real data, and sold him on the idea).
   

 District of Columbia v. Heller -- Parker v. District of Columbia case on 2nd Amendment
Cato Institute article speculates on how Supreme Court would vote, and the role of 2nd Amendment academic scholarship
This article by University of Tennessee College of Law Professor Glenn Harlan Reynolds includes, on pages 347-50, discusses how the Supreme Court might rule on 2nd Amendment rights, given that "the District's [of Columbia] laws effectively prohibited private ownership and use of firearms." His assertion that a decision would be close -- 4 to 5 -- and hard to call, is unremarkable. Vastly more interesting is his brief aside on what the role of recent academic scholarship on the 2nd Amendment may have in influencing a decision. The suggested citation for this article is: Reynolds, Glenn Harlan, "Looking Ahead: October Term 2007" . Cato Journal, forthcoming Available at SSRN: http://ssrn.com/abstract=1017661 The Professor's contact information is:

GLENN HARLAN REYNOLDS
University of Tennessee College of Law
1505 West Cumberland Avenue
Knoxville , TN 37996-1810
United States
865-974-6744 (Phone); e-mail reynolds@libra.law.utk.edu

   

Debate by Federalist Society on Parker v. District of Columbia
This is an intriguing e-mail debate between a panel of experts including Ohio State University professor Saul Cornell; University of Tennessee Law professor Glenn Reynolds, Legal Director of the Brady Center to Prevent Gun Violence, Joshua Horwitz, and lawyers for the plaintiffs in Parker, Alan Gura (Gura & Possessky, PLLC), Bob Levy, The Cato Institute, and Clark Neily, Institute for Justice. In this exchange, they "predict the outcome of the case, and debate about the Second Amendment's relation to the right to bear arms."

The first-class scholarship and citation of sources in this exchange makes this debate particularly informative.
   

Gura & Possessky, P.L.L.C. web site and blog
On September 5, 2007, the District of Columbia and D.C. Mayor Adrian M. Fenty submitted an appeal to the U. S. Supreme Court to overturn the March 9, 2007, decision of the United States Court of Appeals, District of Columbia Circuit, to reverse a decision of the United States District Court for the District of Columbia, to uphold the D.C. ban on handgun ownership. For purposes of the appeal, the name of the original case, Parker v. District of Columbia, was changed to District of Columbia v. Heller to reflect the fact that only one plaintiff was deemed to have standing.

This web site, linked here for convenience of NFAOA readers, was created and is maintained by Alan Gura, one of the attorneys for the plaintiff. As attorney Gura states: "We've established this website to better inform and communicate with the public about our case, Parker v. District of Columbia, challenging the constitutionality of Washington, D.C.'s various gun bans," further noting that "this blog will also contain news update, insights, and other commentary about this historic case."

It would be impossible to duplicate the work that has gone into Mr. Gura's website on the NFAOA website, and by making a link to Mr. Gura's website available here, NFAOA hopes to assist in making information available about this important case.
   

 Resources for the NFA Owners Association - General Items
ATF Director testifies before House Judiciary Committee that registered NFA firearms are not a law enforcement problem
Stephen E. Higgins, BATF director, testifies before Congress in 1984 about the criminal misuse and availability of machineguns and silencers. The BATF director clearly states that in the BATF's experience, legally registered NFA weapons are not used in crimes. These hearings may be cited as "Armor Piercing Ammunition and the Criminal Misuse and Availablility of Machineguns and Silencers." Hearings Before the Subcommittee on Crime, Committee on the Judiciary, House of Representatives, 89th Congress, 2nd Session, on H.R. 641 and Related Bills, May 17, 24 and June 27, 1984. Serial No. 153. Washington, D.C.: U.S. Government Printing Office, 1986.
   
In 1993, ATF dropped its long-standing refusal to allow a former CIA employee to register unregistered NFA firearms under provisions of the 1968 amnesty
The underlying facts in the court case, United States vs. Eighteen Various Firearms, 148 F.R.D. 530 (E.D. Pa. 1993), are set forth in this unpublished ATF Memorandum to the File dated January 15, 1993, obtained by the Freedom of Information Act process. In 1969, CIA employee George Fassnacht sought to register unregistered NFA firearms under the 1968 amnesty provision, ATF agreed, then in 1971 refused to allow the registrations after the firearms were seized in a raid that was later found unconstitutional. In 1993, ATF dropped its objections and allowed the firearms to be registered after years of litigation. "We reached this conclusion," ATF stated, "only after months of researching every possible lead and finding only evidence that Mr. Fassnacht had satisfied the requirements for persons seeking to register NFA firearms after the November 1968 amnesty period [emphasis in original document]."
   
NFRTR document package
Eric M. Larson's document package, "Congressional Concerns about the Accuracy and Completeness of the National Firearms Registration and Transfer Record (NFRTR) have not been fully addressed by the Treasury Department Inspector General or the Bureau of Alcohol, Tobacco, Firearms and Explosives," was compiled in January 2005. It is a collection of selected Congressional and other documents relevant to the accuracy and completeness of the NFRTR, including documentation of a followup audit initiated in 2002 by the Treasury Department Inspector General that was abandoned when ATF was transferred to the Department of Justice. The 2002 audit was supposed to have determined whether ATF complied with recommendations for improving the accuracy and completeness of the NFRTR, as stated in the 1998 audit reports. To read a copy of the October 1998 audit report, click here; to read a copy of the December 1998 audit report, click here; to read a copy of Eric M. Larson's unpublished critique of these audit reports, click here.
   
James Bardwell's NFA FAQ
James Bardwell's now famous NFA FAQ on legal issues related to the NFA.
   
2004 ATF letter on inheritance
ATF letter from Lewis P. Raden, Assistant Director (Enforcement Programs and Services), ATF, to Eric M. Larson dated August 24, 2004, bearing symbols CC-82,457 FE:TH, regarding procedures for transferring National Firearms Act (NFA) firearms after the owner of the firearm has died.
   
Testimony on pre-1934 AOWs
In a 1982 federal court case, ATF testified that firearms classified as AOWs must be given "special and more lenient treatment" than machine guns and other types of NFA firearms or devices. In this detailed 1996 Congressional testimony, Eric M. Larson documents how the Congress repeatedly singled out certain AOWs for such treatment by reducing the $200 transfer tax to $1. The prohibitively high manufacturer, dealer and transfer taxes, the Congress found, work "an injustice against those who need such low-powered, so-called small-game guns and against those who make or deal in them" and that these types of guns "have legitimate uses" (79th Congress, 1st Session, H.R. Report No. 869, page 1). The $1 tax was applied to 12" and 15" barrel Marble's Game Getter Gun in 1938 (the 18" barrel model was administratively removed from purview of the NFA in 1939 because it was not deemed concealable), and extended to a single-barrel pistol with a barrel at least 12" in length such as the smooth bore H&R Handy-Gun in 1945. The transfer tax on all other AOWs was $200 until the Congress changed the transfer tax to $5 for all AOWs in 1960. Despite Congress' actions to lessen the restrictions on AOWs that were deemed to have "legitimate uses,"with a single exception, no AOW that was commercially manufactured in the United States in 1934 was ever commercially manufactured here again. The single exception---the Model 1921 Marble's Game Getter Gun---ceased production in 1942. It is an excellent case study of how firearms the Congress arguably did NOT intend to ban, wound up being essentially banned anyway.
   
 James Bardwell: NFA and other gun law and related info and cases
NFA and other gun law and related info and cases
From 1994 to 2001, James O. Bardwell, Esq., gave unstintingly of his personal time --- arguably postponing a legal career, and cutting seriously into his ability to earn a normal living at a routine day job --- to assemble a vast collection of so-called "ATF Determination Letters" or "ATF Letter Rulings," among other documents, so that members of the Class III community could try and find at least some reliable guidance on how ATF was and is interpreting the law. There are few people who were as indefatigable and selflessly dedicated to advancing the NFA community as an economic/business and collecting activity as Mr. Bardwell, who often said he did all of this out of a genuine love of the hobby. Mr. Bardwell never charged any fee to access his Internet web site, which has been used by virtually every practicing NFA attorney, as well as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for copies of its own records, and literally countless NFA collectors and others who wanted information and guidance on basics as well as advanced legal issues. There is probably nobody in the Class III community who has had such a universally vast, lasting, constructive impact as Mr. Bardwell, his influence is still being felt today, and the information on his site is still in demand.

Shortly after Mr. Bardwell entered the private practice of law in Colorado in 2001 and discontinued his work on what has become known as the "Bardwell NFA Law" site, he granted a permission for Daniel Brewster of South Elgin, Illinois, to post his work on TitleII.com. In the interest of assisting the Class III community, NFAOA is posting this link so readers will have access to this historic and valuable resource. The description of the Bardwell site posted on Title II.com is as follows, and quotes Mr. Brewster's introduction to it:

"Welcome to the James Bardwell NFA Site. This site, www.titleii.com/bardwell/, is a mirror site of the James Bardwell site. It is current as of January 17, 2002. I created this mirror site because of the tremendous value of the information contained within. I'm going to slowly change the format, layout, and indexing of this information over time, but all of the data will remain. Please direct questions and comments to danbrew@titleii.com. James has granted permission for the mirror site to exist."

NFAOA urges readers to donate what they can to Mr. Brewster to help defray his costs of providing information to the NFA community, which includes providing current copies of virtually all ATF forms used by collectors, dealers and citizens. Forms for individuals include Form 1, Form 4, Form 5, Form 5320.20, and Certificate of Compliance. Forms used by dealers include Form 2, Form 3, Form 4, Form 5, Form 6, Form 6a, Form 9, Form 10, Form 11, Form 5300.38, Form 5330.4, Form 5300.42, and Form 5630-7. Following a tradition established by Mr. Bardwell, Mr. Brewster has always offered key services free of charge.
   

 Legal discussions of NFA issues by James H. Jeffries III, Esq.
Institutional Perjury
This is the original version of the now-famous "Institutional Perjury" article by James Jeffries, and is included here for purposes of historical reference. Published versions are included elsewhere in this site, in the section entitled Legal and issues regarding the accuracy and completeness of the NFRTR, which states: The first and best legal analysis of Thomas Busey's remarks about the NFRTR, is by an attorney who learned of the tape's existence and then quickly filed a Freedom of Information Act request to keep the tape from being destroyed. The article, "Institutional Perjury," by James H. Jeffries III, was published in Voice for the Defense, Vol. 25, No. 8, October 1996, pages 28-30, and later in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1999. 105th Congress, 2nd Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1998, pages 40-42; click here to read it.

To read a copy of "Institutional Perjury" published in the Congressional Record (Extensions of Remarks), Vol. 142, August 2, 1996, pages E1461-E1462, click here.
   

When the BATF Comes A-Callin'
Many federally licensed firearms dealers, federally licensed collectors of "curio or relic" firearms, and private citizens who legally collect firearms without any type of federal license are unaware of their legal rights when confronted by federal law enforcement agencies. Coupled with this fact is the reality that federal law enforcement agents are in the business of determining and effecting cause for arrest and prosecution. Under the NFA, any violation is a serious felony offense that will subject a defendant to up to 10 years in federal prison, and a fine of up to $250,000, for each violation. The notion that a private citizen is not required to speak to a federal law enforcement agent may run counter to the instincts of most people; however, federal law enforcement agents are trained to make criminal cases by evaluating facts and circumstances and as attorney Jeffriees points out, statements made by a defendant. One cannot read very many federal court cases involving NFA firearms and related issues, without being struck by the fact that at the time the now-convicted defendant was first approached by an ATF Special Agent, there really was no legal problem. The problem arose after the defendant started talking and managed to talk himself into one or more violations of law. It is an unfortunate reality that ATF often construes cases to be violations of law when, in fact, they are not; and it has long been established and legally sanctioned law enforcment practice to lie to a defendant as part of an interview or interrogation, to elicit information. This classic article was written in 1994, and appears never to have gone out of (Internet) print.
   
AR-15 Drop-In Autosears
AR-15 drop-in autosears are still advertised for sale in publications such as Shotgun News, without any indication they are considered "machine guns" under the NFA. In this article, James Jeffries discusses the legal hazards of buying and possessing drop-in autosears. Various types of autosears are discussed and pictured in Chapter 2 of the new ATF National Firearms Act Handbook, entitled "What are 'Firearms' Under the NFA?"
   
Title II Firearms Transfers and "Taxpayer Privacy"
This article discusses the privacy provisions of Title 26, United States Code, Section 6103, regarding "tax return" information, a federal law that requires any information submitted by a taxpayer to file a tax return be kept strictly confidential. Transactions that involve the tax-paid transfer of an NFA firearm or device are covered by Section 6103.
   
Owners of "Remanufactured" Guns Beware!
This article, undated but written in 1994, discusses the implications of ATF's seizure and forefeiture and ultimate destruction of an MP-40 machine gun bearing serial number 4212, that was once owned by Noel Napolilli of Fairbanks, Alaska, discussed and documented on this site in the section entitled Legal and issues regarding the accuracy and completeness of the NFRTR. Mr. Jeffries discusses an "unannounced" position taken by ATF that "unless a foreign-made gun was imported as a dealers sample or was registered during the 1968 amnesty, it cannot be in the country legally unless it came in as a DEWATs (deactivated war trophy) and was subsequently 'REWATTED' on a Form 2." But the heart of the article goes to the implications of ATF losing or destroying all of its NFRTR records on this MP-40, and the hazards that the loss of those records represents for all people who believe they are legally entitled to possess NFA firearms because they have ATF-issued-and-approved paperwork.
   
 ATF or Department of Justice responses to letters from Members of Congress
Department of Justice IG agrees to audit NFRTR starting in late 2005
In a letter dated October 21, 2005, the Department of Justice Inspector General (IG) advised Senator Jon Kyl (R-Arizona) that "In response to correspondence we have received expressing concerns over the accuracy and completeness of the NFRTR, the OIG plans to initiate a review of the ATF's management of the NFRTR in late 2005." The letter repeats many of ATF's recent responses to questions about the NFRTR (and attributes them to ATF). But the letter also , the letter notably states that the OIG is "also aware of extensive correspondence, beginning in 1998 and continuing through the present, [alleging inaccuracies in the NFRTR] between the concerned individuals and the ATF, United States Attorneys' Offices, and the Department of the Treasury OIG, as well as several Members of Congress." The lesson to be drawn here is the importance of involving your Congressional representatives in expressing your concerns about the NFRTR. It is obvious from this letter that the sustained objections to how ATF is conducting the public business have been heard, and will now be acted upon.    
ATF Director to Sen. John McCain: goal is to process estate transfers "within 30 days"
For information of NFAOA readers, sent by an Arizona FFL/SOT, with redactions to the letters for privacy: "Eight transfers from an estate cleared to me this week, all were coming in bound on Form 4's. I am a dealer in [Arizona]. I paid for the guns January 6, 2005. Paperwork was submitted promptly to BATFE. Guns went pending March 3, 2005. I had contacted Ken Houchens mid-March regarding the transfers, he told me guns were pending. Re-emailed Houchens in mid-April when guns still had not cleared, Houchens never responded to the 2nd e mail. Examiner was Lucretia Fountain, multiple calls, she never returned calls or was at her desk until I called Friday June 3, 2005. Fountain told me guns were in the system but she could not find the forms. Enough was enough. I called Senator McCain (my state senator), and explained my situation. The Senator's staff asked for me to write a letter explaining my problems. I hand delivered my letter/FFL/SOT on Monday June 6, 2005. I received a call today from the broker dealer, guns had cleared and paperwork arrived from ATF on Thursday June 9, 2005. ATF also called the transferee and told her that '[Name deleted for privacy] must personally pick up the guns.' You were correct on Subguns, Senator's staff does get responses in 1 week or less."    
 Len Savage Court Testimonies, Firearms Technology Branch (FTB) Classification Letters and Related Issues
For 25 years, lost NFA registration documents plague long-time NFA dealer Saeid Shafizadeh of Pars International Corporation, Louisville, Kentucky
As a member of the NFA community since 1982, Saeid Shafizadeh is well known as the owner of Pars Internation Corporation of Louisville, Kentucky. In making publicly available this July 11, 2007, letter, (click here to read it) he wrote to NFA Branch Chief Kenneth Houchens, documenting continuing evidence, in 2007, that the NFRTR remains inaccurate and incomplete, Mr. Shafizadeh commented: "Over the past 25 years I have written many letters of that nature with no avail." What's he talking about?

Answer: In July 2007, Mr. Shafizadeh received an "Error Letter" from ATF, stating that an NFA firearm that ATF approved for delivery to Pars International Corporation and which was delivered on April 30, 2007, "was not shown registered" to Pars. As an enclosure to his July 11, 1007, letter, Mr. Shafinzandel enclosed a copy of "an approved ATF Form-3 dated April 12, 2007," further noting: "Since it appears that the transfer to Pars was pursuant to an approved ATF Form 3, I am very concerned that the National Firearms Registration and Transfer Records do not reflect the same."

When Mr. Shafinzandel says he has "written many letters" like this one during the past 25 years, without effect, it is noteworthy that he memorialized his concerns about the accuracy and completeness of the NFRTR in this affidavit (click here to read it) for a case in 1998 being handled by NFA attorney James H. Jeffries III.

Unfortunately, this issue is not addressed in the Department of Justice Inspector General's recent review of the NFRTR, published in June 2007 (click here to read it). Among other reasons, the June 2007 report is a failure because, as attorney Stephen P. Halbrook stated on page 545 of his treatise, Firearms Law Deskbook (2008 edition): " . . . if the owner or the executor of a deceased owner cannot find the registration paperwork, which may be lost or destroyed, and if the record cannot be found in the NFRTR, then a voluntary abandonment of the firearm may be induced, or even a criminal prosecution initiated. On such issues the report is not sufficiently informative." [emphasis added]

Mr. Shafizadeh distinguished himself by going to law school to become an attorney (while an NFA dealer) so he could sue ATF as needed. Long-term NFA attorney David T. Hardy, Esq., wrote up one of attorney Shafizadeh's cases in his firearms blog, Of Arms and the Law (click here to read it). The case, Baranski and Pars International Corporation vs Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco and Firearms, et al. (click here to read it), the United States Court of Appeals, 6th Circuit, ruled that ATF's search warrant was invalid, and that the ATF Special Agents involved are not entitled to qualified immunity from being sued.    

"Jiggering Convictions" by James P. Bovard introduces Len Savage essay on being persecuted by ATF
A long-time critic of ATF, writer James P. Bovard about wrote how ATF did its best to convict citizens for violations of law based on ATF concocting the evidence. In "Jiggering Convictions," first published in Mr. Bovard's book Feeling Your Pain: The Explosion and Abuse of Power in the Clinton-Gore Years (St. Martins: 2000), the Staples case is reprised, as is the continuing travesty of using the NFRTR in view of its known errors. Mr. Bovard uses this essay to introduce "Am I an Enemy of the U.S. Government?," by Len Savage, President of Historic Arms LLC of Franklin, Georgia. As Mr. Savage notes: "FTB 'experts' have even added external and internal conversion devices to legal semi-auto rifles during testing, then claimed that the first was -- because of these additions -- an 'illegal machine gun.' (The ATF-added devices are by law machineguns in and of themselves, because they when installed, allow a host firearm to fire full auto as a machinegun.) ATF 'experts' have done this in full view of the entire court!" In retaliation for showing up at a trial as an Expert Witness, ATF declared one of Mr. Savage's products to be "illegal contraband" and a "machinegun" despite approving the device as a "non firearm" nine months previously.    
Summary of Errors in the NFRTR disclosed in audits or reviews by ATF or the Treasury Department Inspector General, 1994 to 1998
Information about errors in the NFRTR in official Government documents is not easy to locate, and this table (click here to read it) summarizes them in context, as well as identifies their locations in the public record. While this information is publicly available, it made no difference in a recent court case in which the accuracy and completeness of the NFRTR may have been relevant.

On September 25, 2007, Dario Giambro of Auburn, Maine, was convicted of the felony charge of Possession of Unregistered Firearm, a Model 1908 Marble's Game Getter Gun. The case is United States vs. Dario Giambro, Criminal Number 07-41-P-S, United States District Court, District of Maine. Before trial, on August 17, 2007, Chief United States District Judge George Z. Singal denied motions in limine to allow testimony by Eric M. Larson as an Expert Witness on the NFRTR, and in seeking to have the NFRTR declared insufficiently reliable for purposes of criminal prosecution (click here to read the motions). Judge Singal determined that Mr. Larson's statements "largely contain conjecture, speculation, and lack any scientific basis" (click here to read Judge Singal's order), referring to July 18, 2007, Declaration by Mr. Larson (click here to read it).

In his order, Judge Singal also cited United States vs. Rith (164 F.3d 1323, 10th Cir. 1999) as the most reliable evidence of the reliability of the NFRTR (click here to read the Rith case), which cites a 1996 audit of the NFRTR by the Audit Services Division, Department of the Treasury, that reported a "critical-error" rate of "no more than 1.5%," and rejected what he termed "outdated" records. In fact, the NFRTR was partially audited by the Treasury Department Inspector General in 1998, and published audit results indicate "critical error" rates of 4.3% for Form 4467, 8.4% for "Letter" and 7.9% for "Other" NFRTR records. Importantly, unpublished Work Papers from the 1998 audit disclose that Treasury IG auditors initially found an 18.4% "critical error" rate for Form 4467; the results for "Letter" and "Other" categories were redacted completely. In response to these initial audit findings, ATF changed the definition of "critical error," as the error summary table shows, to lower the "critical error" rate to that reported in the published report. The same sample of NFRTR data was analyzed for both sets of results. The difference was how "critical error" was defined; that is, analyze the Form 4467 data one way, the results are an 18.4% critical error rate; analyze it using a different definition for critical error, and the critical error rate drops to 4.3%. Indeed, the reaction of NFA Branch staff during "a review and discussion of database error analysis" by Treasury Department IG auditors, held June 17, 1998, was that "the results obtained by the OIG audit were disappointing at best and could have serious consequences for the ATF firearms registry mission."
   

Additional trial transcripts for United States v Kwan; testimony of ATF and cross-examination by defense counsel
Additional trial transcripts for United States vs. Albert Kwok-Leung Kwan, United States District Court, Western District of Washington at Seattle, Docket No. CR06-305 TSZ (2007), are in three volumes. Other transcripts are available elsewhere in this section.

In Volume I (click here to read it), the trial groundwork is laid on June 18, 2007. The Judge issues instructions to the Jury on how to receive and interpret evidence in the case, and the charges against Mr. Kwan are laid out by the prosecution and rebutted by defense counsel. As the transcript discloses, since age 18, Albert Kwan has collected military firearms and ancillary items, such as uniforms, and amassed a considerably large collection, which included "fake guns, dummy guns, BB guns, anything that had historical significance." ATF charged him with unlawfully possessing an M-14 machine gun, although it "had been welded shut --- the sear, which is what makes it function as a fully automatic weapon, was welded on to the receiver. The receiver had been physically changed by deep-penetrating welding so that it would not fire in fully automatic mode." Mr. Kwan was also accused of possessing a shoulder stock for a Heckler & Koch VP70, a semiautomatic pistol. ATF contended that because he possessed a stock that would attach to the VP70, and the firearm was not registered as a short-barreled rifle, Mr. Kwan violated the NFA.

In Volume II (click here to read it) ATF Firearms Enforcement Officer Adam Cornell Galbraith testifies on June 19, 2007, how he altered Mr. Kwan's M-14 by using "a Dremel-type tool, a rotary tool, with a cutting wheel to cut through the welded sear release and selector shaft," removed those parts, and "substituted parts from the national firearms collection to determine the ease with which" the M-14 "could be readily restored" to fire in fully automatic mode; that is, as a machine gun. Mr. Galbraith also testified that he attached the shoulder stock described in Volume I to the Heckler & Koch VP70, fired the weapon, and concluded that it was a short-barreled rifle. Under cross-examination, Mr. Galbraith testified that ATF has "a standard operating procedure manual that covers all the different tasks and responsibilities that the Firearms Technology Branch is responsible for," then said he didn't believe the manual was available to the general public, or that there was "a requirement to use a stop watch to determine" how long it would take to convert a semiautomatic firearm into a machine gun. He also said testified that "any semiautomatic firearm could be converted into a full automatic firearm . . . [w]ith enough time and effort."

In Volume III (click here to read it), Albert Kwan testifies on June 20, 2007, about personal background, his hobby of collecting firearms and military items, and the range of items in his collections. Richard Vasquez, Acting Chief, Firearms Technology Branch also testified that it is an "unwritten regulation" and "unwritten policy" for FTB to examine firearms for manufacturers to determine whether or not they are machine guns, and that this service is not available to the general public. Assistant Chief Vasquez also testified that "We have classified firearms that were not machineguns and then reclassified them as machineguns," and acknowledged that "the FTB is human, they make mistakes." This transcript is also interesting because it memorializes how ATF misled the Court regarding the short-barreled rifle charge against Mr. Kwan. As we have seen, Mr. Kwan was convicted of that charge; however, that conviction was overturned on August 3, 2007. To read a copy of the Judge's order overturning the conviction, click here; however, it appears elsewhere in this section under the title "Federal Judge rules ATF acted in bad faith, invalidates conviction for possession of short-barreled rifle."
   

Colloquy by Rep. Phil Gingrey (R-Georgia) on ATF firearms testing isssues
On July 25, 2007, Rep. Phil Gingrey (R-Georgia) proposed an amendment to the appropriations bill for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which would prohibit ATF from spending any money to pay the salaries of any ATF employees "to test and examine firearms without written and published testing standards." This prohibition, if enacted, would have halted all firearms testing by the Firearms Technology Branch as well as any other component of ATF. Rep. Gingrey withdrew the amendment after being assured that an underlying issue -- the mistreatment of U.S. firearms manufacturers -- would be further examined. Rep. Gingrey further noted that he introduced H.R. 1791 (Fairness in Firearm Testing Act) to address this problem (click here to read a copy of H.R. 1791). The source of this published colloquy may be cited as Congressional Record, Vol. 153, No. 120, July 25, 2007, pages H8481 to H8482.
   
ATF changes position on classifying a "shoestring" as a machine gun
ATF's changing position on the definition of a "machine gun" can be illustrated in the following letters ATF wrote in 1996, 2004, and 2007 regarding the use of a shoestring to accelerate the rate of fire of a semiautomatic firearm. These have come to be known as the "shoestring trick" letters. ATF determined that a shoestring is a machine gun in 1996 (click here to read it) in response to an inquiry by an unknown person, and the version posted here is a redacted one that was obtained by Stephen P. Halbrook, Esq., in response to a Freedom of Information Act (FOIA) request.

In February 2004, Brian Blakley asked ATF to clarify its position, and in September 2004 ATF responded by reiterating its 1996 determination (click here to read the 2004 letter). Defense counsel made vast use of the September 2004 letter, which resulted in acquittals of charges of possessing unregistered machine guns. The reason is that defense counsel was admitting into evidence and reading to the jury the fact that ATF had determined a shoestring, in and of itself, to be a machine gun. Possibly as a result of these continuing legal setbacks, ATF initiated a review of the "shoestring trick" determination and in June 2007 reversed its position (click here to read the 2007 letter). Importantly, this reversal of position was not done in response to a request by Mr. Blakley or anybody else; it was internally initiated by ATF, and ATF presumably sent the letter to Mr. Blakley to ensure he would not continue to rely on the February 2004 letter as a statement of ATF's position.

In mid-2007, Mr. Blakley was questioned about his motives for making the letters available. Mr. Blakley responded that while he had never to his knowledge disclosed his motives, he had no problem in doing so, and stated: "The initial [February 2004] letter had a very important, serious usefulness (ignoring the 'snicker factor' that many got from it). It has been used in more than one court case to push this point: If ATF has to 'doctor' the gun that they are claiming is a machinegun (during a prosecution) by adding bubble gum, bailing wire, and duct tape to get it to 'go full auto,' then by the logic in the letter, the 'bubble gum, bailing wire, and duct tape' are the machine gun. This is a very important point and I'm not the only person it has mattered to.

Regarding posting the new [June 2007] letter (which I did not request by the way, ATF sent it spontaneously many years after the fact - hmmm, wonder why they did that), the reason I posted it is precisely *because* defense attorneys and experts out there *are* using the original letter (introducing as evidence, using as a basis for arguments, etc.) and I didn't want them to find out ATF modified their position by getting blind-sided in court - I wanted them to know in advance so they could modify their strategies, etc., as appropriate."    

Federal Judge rules ATF acted in bad faith, invalidates conviction for possession of short-barreled rifle
This is the court order for a new trial in United States vs. Albert Kwok-Leung Kwan, United States District Court, Western District of Washington at Seattle, Docket No. CR06-305 TSZ, June 19, 2007, in which the testimony of Len Savage helped acquit Mr. Kwan of charges of possessing an unregistered machine gun (click here to read Mr. Savage's testimony). Mr. Kwan was, however, convicted at that trial on the charge of illegal possession of a short-barreled rifle, but that conviction was overturned on August 3, 2007.

This order for a new trial, written by United States District Judge Thomas S. Zilly, is well researched and suggests that a retrial would not be successful. Long-time NFA attorney David T. Hardy of Tucson, Arizona, made the following comments about this order in his blog, Of Arms and the Law, on August 16, 2007:

One gets the impression the court was a bit put off by ATF. (1) The raid was without any basis. Defendant had been an NFA dealer, and when he went out of that business, transferred an NFA gun to himself. At trial, the U.S. Attorney conceded that was entirely legal. ATF either didn't notice the transfer, or claimed it was illegal in some other way. (2) The court cites an ATF advisory letter which clearly suggests that the count upon which defendant was convicted was without basis.

Basically, he had two shoulder stocks for pistols, and two pistols that would take them. One was a registered full auto pistol, for which the stocks were perfectly legal, and one was an ordinary semiauto pistol ─ which, if a stock were attached to it, would be an NFA short-barreled rifle. The court cites Thompson-Center for the proposition that possession of a set of components that could be made into a short-barreled rifle is not improper if it has "obvious utility" for also making non-NFA handguns or rifles. This is rather the flip side of that: the components had obvious utility for making a registered NFA firearm.

Judge Zilly's order may be cited as United States of America vs. Albert Kwok Leung Kwan, CR06-305Z Order, United States District Court, Western District of Washington at Seattle, August 15, 2007.

   

Len Savage legally invalidates ATF policy of "once a machine gun, always a machine gun"
This is the official transcript of Len Savage's June 19, 2007, testimony in the case of Albert Kwan, a former FFL/SOT, who was charged with possession of an unregistered machine gun and possession of an unregistered short-barreled rifle. A jury acquitted Mr. Kwan of the machine gun charge, and found him guilty on the short-barreled rifle charge, but the verdict was set aside and Mr. Kwan was granted a retrial (see further discussion below). In his testimony, Mr. Savage established himself as a firearms expert and showed that ATF needed to spend a significant amount of time and effort to modify Mr. Kwan's M-14 semi-automatic rifle so that it would function as a fully-automatic firearm-that is, a machine gun. Mr. Savage also legally invalidated ATF's "once a machine gun always a machine gun" policy and listed several instances where the Firearms Technology Branch (FTB) had made mistakes in classifying firearms. (There is no doubt this was an ATF "policy" because that is how ATF characterized it to the Congress during its 2002 appropriations hearing; click here to read that testimony). Finally, Mr. Savage explained how ATF could prosecute most gun owners for possession of an unregistered machine gun: given enough time, tools, and parts, any semi-automatic firearm can be converted to a fully-automatic firearm. This case may be cited as "Testimony of Len Savage" in United States vs. Albert Kwok-Leung Kwan, United States District Court, Western District of Washington at Seattle, Docket No. CR06-305 TSZ, June 19, 2007.

The background of the case is that ATF was trying to take Mr. Kwan's FFL for not enough sales and NFA transfers (Mr. Kwan had no paperwork violations). In pursuing Mr. Kwan, ATF did two things: (1) examined every gun in his inventory, by flying out a firearms technology expert, and sending many guns to FTB for further "testing." The ATF took a semiautomatic version of the M-14 and made a machine gun out of it by removing welding and installing full-auto parts (ATF claimed Mr. Kwan's semi-automatic M-14 was a machine gun because it was made from a machine gun ("once a machine gun, always a machine gun"), and that it was also "readily restorable" as well, and it only took a small arms expert, in a government research facility about 30 minutes to make it fire full auto) and (2) later added a superceded charge of possession of an unregistered short-barrel rifle because Mr. Kwan had a Heckler and Koch VP-70 model M (a machine gun), with factory "Holster/Stock" (a plastic version of Luger or High Power wooden holster/stock), a spare "Holster/Stock", and a VP-70 model Z [semiautomatic only]. All these items are perfectly legal. During the attempts to take Mr. Kwan's FFL, the local ATF office came to gather any "post dealer samples" (machine guns manufactured after May 19, 1986). The ATF's own records (the National Firearms Registration and Transfer Record, or NFRTR) are incomplete, and filled with errors. ATF seized Mr. Kwan's VP-70 M machine gun, and stated that according to the NFRTR, this firearm was a "post dealer sample" (later, however, ATF determined it had been imported in 1977 as a dealer sample). ATF left the spare "Holster/Stock," and the VP-70 Model Z (semiautomatic only). ATF later charged Mr. Kwan for "otherwise combined" or constructive possession, because the ATF was able to attach the Holster/Stock to the semiautomatic VP-70 Model Z during a second visit. There was a hearing August 3, 2007, regarding the conviction on the possession of a short-barrel rifle charge, U.S. District Judge Thomas Zilly dismissed the guilty verdict and gave the Assistant United States Attorney the option of retrying the case; click here to read his August 15, 2007, order.    

"Department of Justice and ATF exonerates itself of misconduct in allegedly retaliating against Len Savage
Is Len Savage, whose technical expertise kept an innocent man from being unjustly convicted of a serious felony, now an enemy of the United States Government? The documentation in this section gives that impression. Firing tests and Mr. Savage's examination of the rifle's mechanisms in United States vs. John Glover showed that the firearm was not an "illegal machine gun" at all, but a malfunctioning semi-automatic; the FTB's "expert" admitted on tape that he had never examined the rifle's inner workings. Through Mr. Savage's work, the defendant was acquitted and the case was dismissed with prejudice (click here to read the case).

Mr. Savage apparently so enraged FTB by the time of the Wrenn trial that a few months after the trial, ATF declared one of his company's products to be "illegal contraband" and a "machinegun." FTB had classified this device as a "non-firearm" nine months earlier. Mr. Savage had been in production for months after receiving the "non-firearm" determination letter--and suddenly, for no apparent reason other than spite, his investment was wasted, and he was in jeopardy of becoming a criminal. With his living and freedom in jeopardy, Mr. Savage notified the United States Federal District Court, and the Department of Justice, of ATF's apparent malfeasance. Predictably, the Department of Justice (of which the ATF is a subsidiary) claimed to have investigated itself and found itself faultless. Years after Mr. Savage first began asking questions, the FTB still does not have a documented firearms testing procedure. Today, defense attorneys use an October 2005 Congressional Research Service report to demonstrate the ATF's lack of credibility (click here to read the report).

Unsurprisingly, federal prosecution of "mystery machinegun" crimes have dropped drastically, if not stopped altogether. This is a good thing for justice, because for years too many innocent people were railroaded into prison. Mr. Savage's circumstances are less bright, because ATF has forbidden him to contact ATF in any way other than by written correspondence--which puts him at a disadvantage to all his competitors, who may still freely call ATF to ask questions. Also consider that ATF has "lost" many of Mr. Savage's letters, and not answered some of his correspondence for 14 months, which for all intents and purposes has shut down his business, Historic Arms, LLC, of Franklin, Georgia. This illegal de facto shutdown has occurred without cause or court order, and without the due process allegedly guaranteed by the United States Government. Is Mr. Savage now an enemy of the United States Government?    

"Why the ATF's Firearms Testing Procedures are Scientifically Invalid," by Len Savage, July 1, 2005
Firearms expert consultant Len Savage has written a profound article that explains in clear, dispassionate detail: (1) that ATF "experts" sometimes don't even know what they're looking at when they examine a firearm; (2) how ATF uses arbitrary standards to determine whether a semi-automatic firearm can be "easily converted" to a machine gun; (3) how ATF conducts ridiculous and dangerous tests that have no application to the real world; and (4) that ATF sometimes appears to set up tests simply to "prove" whatever conclusion they've already decided upon for a particular firearm. While ATF has been conducting these scientifically invalid tests for many years, Mr. Savage is the first person who has clearly documented and articulated the depth of ATF's incompetences in this area, and made this information publicly available to a large audience. NFAOA thanks JPFO for sponsoring the original posting of Mr. Savage's article, and granting a permission for NFAOA to link to the article.    
In 2004, Len Savage demonstrates that ATF firearms examiner Michael J. Cooney is technically incompetent
As the accompanying documents show, a competent firearms examination resulted in the dismissal of federal charges against Mr. John W. Glover, Jr., of Charlotte, North Carolina, "with prejudice" on November 1, 2004. Len Savage of Franklin, Georgia, owner of Historic Arms, LLC, was hired as an expert witness by Mr. Glover's attorney to conduct a technical examination of firearms that an ATF expert determined in a "Report of Technical Examination" dated October 31, 2002, was a machine gun. Mr. Savage conducted a technical evaluation of the alleged machine gun on May 27, 2004, and determined that (1) the firearm malfunctioned because of broken parts, noting that the malfunction was "very dangerous and could be fatal to the user"; (2) the firearm was not a machine gun; and (3) in a videotape, showed that ATF Firearms Enforcement Officer Michael J. Cooney lacked the technical skills to even disassemble the firearm being tested, and that his conclusion the firearm is a machine gun is legally incorrect, thereby destroying ATF's case against Mr. Glover and halting his prosection. The videotape is being distributed exclusively by JPFO at  www.jpfo.orgOne of the consequences of Mr. Savage's exposure of the ATF's Firearms Technology Branch's technical incompetence, was H.R. 1603, the Fairness in Firearms Testing Act. Click here to read it.    
ATF Special Agent Lee Baldwin, sent to pick up Maxims, doesn't know what they look like
Flaws in ATF firearms law enforcement practices are evident in the testimony of Special Agent Lee Baldwin in United States vs. Wrenn (Cr. No. 1:04-045, United States District Court, District of South Carolina, Aiken Division, 2005). Consider that when ATF instructed Special Agent Baldwin to go to Mr. Wrenn's business premises and retrieve some Maxim machinegun parts sets, Special Agent Baldwin's reaction was: "I called FTB and had them send me a picture of a Maxim because I didn't know what it was" (see page 31 of the attached transcript). Special Agent Baldwin's testimony is significant because (1) when he explains he has no clue about guns, although he is employed to enforce federal firearms laws, (2) he relies solely on FTB to guide him in his enforcement efforts. Another reason his testimony is significant is that it connects back to FTB and the ability of FTB to mislead field agents into enforcing its opinion of the day (which varies from case to case), instead of a published regulation or public law. But, keeping this simple: Special Agent Baldwin had no idea what a Maxim was, and was sent to retrieve 12 of them in his Ford Mustang. One must ask: How well could have FTB informed him?
   
ATF Inspector George Semonick testifies November 8, 2005, about condition of NFRTR
During ATF compliance inspections of licensed manufacturers of and dealers in NFA firearms and devices, it is often the case that the ATF's firearms records in the National Firearms Registration and Transfer Record (NFRTR) are inaccurate, while those of the manufacturer or dealer are accurate. In the case United States vs Wrenn (Cr. No. 1:04-045), District of South Carolina, Aiken Division, ATF Inspector George Semonick testified under oath that "there was a discrepancy" between firearms records maintained by defendant Wrenn and those maintained in the NFRTR by ATF. Inspector Semonick also confirmed "that the records, the records kept by ATF, were deficient." Defendant Wrenn was not charged with any record-keeping violations.
   
Prosecution drops all firearms charges against Wrenn after declining to test fire the uppers
The significance of this brief transcription of testimony at the Wrenn trial is the motion by prosecution to "test fire" in front of the Jury if the defense refused to concede the uppers were machineguns, and the dropping of all firearms charges against Ernest Wrenn. At that point defense pointed out that the ATF used a "conversion device" (small metal bars and zip ties) to induce full auto fire, and requested that they all should be demonstrated in front of the jury, but without the "conversion devices." At this point, the Assistant United States Attorney assures the Court that ATF has been testing like this for years. The defense's technical advisor then handed defense counsel the well-known "shoestring letter" for the Judge to contemplate over the weekend. On Monday, the prosecution withdrew its motion to testfire the machineguns in front of the Jury. This was a pivotal point in the trial. United States Attorney Johnny Gasser physically separated himself from the prosecution's table and sat down behind them. The trial lasted just two more days until he offered a deal to dismiss all gun charges, and later asked the Department of Justice to investigate the conduct of ATF.
   
 National Association of Criminal Defense Lawyers FOIA BATFE Manuals
These BATFE manuals were obtained by the National Association of Criminal Defense Lawyers through the Freedom of Information Act. As would be expected, the manuals are redacted in part to avoid divulging sensitive investigative techniques, however they are still an invaluable resource, especially to FFL holders. Most of the manuals are PDF files created by scanning a copy of the original, and therefore are graphical in nature and not textually searchable. One exception is the "Federal Firearms Regulation Reference Guide" which is a direct electronic PDF output and therefore is textually searchable. Since it contains many of the statutes that FFL holders and gun owners should be interested in, the ability to search for the occurrence of specific words or phrases is especially useful.
 Letters by Members of Congress regarding ATF mismanagement
Former Appropriations Subcommittee Chairman Jim Lightfoot urges ATF oversight hearings
In a letter dated November 20, 2010, former Rep. Jim Lightfoot (R-Iowa) welcomed incoming freshmen to the House of Representatives (click here about here] to read it), and urged them to support ATF oversight hearings.

As a former Chairman of the House Subcommittee on Treasury, Postal Service and General Government, Committee on Appropriations, Rep. Lightfoot had responsibility for approving ATF's budget and gained insights into ATF operations. At one Subcommittee hearing in 1996, Rep. Lightfoot heard testimony about issues regarding ATF's classifications of certain AOWs as Curio & Relic firearms (click here about here] to read it); it was the first detailed testimony before the Congress about any NFA Curios & Relic firearms since the NFA was amended under Title II of the Gun Control Act of 1968, effective November 1, 1968.

In his November 20, 2010, letter, Rep. Lightfoot urged incoming freshman members:

"[G]overnment agencies all suffer from the 'Blackbird Syndrome.' That's where several hundred Blackbired as sitting on a telephone wire and then suddenly one of them takes off. No one knows where that one bird is headed but the entire flock takes off behind him.

Agencies work the same way. They watch each other like a Hawk (Blackbird).

Pick one or two agencies for the 'Mr. Clean' treatment. Go after them in high profile. You will be surprised how many other agencies will start to clean up their acts.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) would be a good place to start. It is one of the smaller agencies, therefore completing the audits and investigations will take less time. It is an agency that has drifted for nearly 6 years without a permanent Director.

ATF was recently featured on CNN regarding an agent who blew the whistle on an illegal wiretap and was rewarded wtih exile to an office with nothing to do for two years.

One of their Special Agents in Charge (SAC) was found by a local reporter to be driving a brand new Cadillas with all the bells and whistles plus a police package. His punishment was to move him to DC Headquarters with a promotion.

Check the millions of dollars paid out in settlements to employees as well as the huge backlog of employee complaints being ignored. Compare this to other larger agencies and you will be shocked at the level of abuse and waste.

Bottom line, it is your responsibility and obligation to make these agencies accoutable to yoy and, by extension through yu, to me the taxpayer.

Demanding accountability is where you can make the biggest difference in the shortest amount of time.

It hasn't been done for years. Focus and cut, change Washington not the other way around."

Rep. Lightfoot has other advice -- "Just because an agency head is sitting across from you in a hearing room do not assume he/she is always telling the truth. As Ronald Reagan once said, 'trust, but verify.'"
   

Rep. John Boozman requests Department of Justice Inspector General to investigate ATF's administration of War Trophy and DEWAT programs
In a September 22, 2005, letter, Representative John Boozman (R-Arkansas) requested DOJ Inspector General Glenn Fine to investigate and tell him "which documents ATF currently recognizes as entitling World War II veterans, and/or their lawful heirs, to legally possess War Trophy Firearms, and to legally possess DEWATs. Rep. Boozman made this request as Chairman, Subcommittee on Economic Opportunity, House Committee on Veterans Affairs. This investigation may establish sufficient legislative history to enable Congressional findings necessary to enact H.R. 2088 (click here), which would allow certain Veterans, and their lawful heirs, to register certain firearms in the NFRTR. For a copy of the ATF letter that contributed to Rep. Boozman's concerns, click (here). In sharing this letter with Congressional representatives and others, please consider the value of supporting H.R. 2088 as well as Rep. Boozman's investigative request---there is a time and place for unrelated NFA concerns. Now is the time to focus on some badly needed legal reforms of the NFA and the NFRTR that can be done if people will work together, united, in focused and politely constant and consistent ways. WE CAN DO THIS!!!
   
Senator Arlen Specter requests the Department of Justice to provide "substantive findings and views" about the NFRTR problems, and inconsistent ATF rulings on DEWATs
ATF's recent use of identical evidence to determine that a DEWAT wasn't registered, and then that it was, and related problems, impelled Ken Crane to ask Senator Arlen Specter to request the Department of Justice Inspector General to audit the NFRTR. Mr. Crane also cited Eric M. Larson's letter to Senator Paul S. Sarbanes, and Senator Sarbanes' response via a letter to the Department of Justice (both letters are also listed in this section).
   
Senator Paul S. Sarbanes urges Department of Justice to do "a careful review" of the NFRTR situation
On March 18, 2005, Senator Paul S. Sarbanes (D-Maryland) wrote to the Department of Justice, urging "a careful review" of documented concerns "about the completeness and accuracy of the National Firearms Registration and Transfer Record," in response to Eric M. Larson's letter to him dated February 14, 2005.

IMPORTANT NOTE: Sen. Sarbanes is a co-sponsor of S. 645, the Assault Weapons Ban and Law Enforcement Protection Act of 2005, introduced March 16, 2005. It is heartening to see that an anti-gun Democrat like Sen. Sarbanes is open-minded enough to look beyond partisanship and politics and in effect insist on "good government," which is the real issue here. The NFRTR problems are not "gun control" issues per se, but issues of good government, fair government, and legally principled federal law enforcement. Many if not most politicans refuse to become involved or quoted on any NFA or NFRTR issues---it is a testament to how well our political system can work if we involve our Congressional representatives. For Sen. Sarbanes to be the first Member of the United States Senate to raise the NFRTR problems with the Department of Justice, is a high ethical and legal honor.
   

 War Trophy firearms, DEWATs, and related issues
Control and Registration of War Trophies and War Trophy Firearms, 28 August 1969
These are military regulations for the Departments of the Army, the Navy, and the Air Force on War Trophies and War Trophy firearms. Under these regulations, no National Firearms Act (NFA) firearms may be retained; this prohibition went into effect during the 1950s, and was first applied to machine guns under War Department Circular 155, effective May 28, 1945.
   
"Captured Enemy Property: Booty of War and Seized Enemy Property," by William Gerald Downey, Jr.
This article, discusses the definitions of captured enemy property, booty of war, seized or requisitioned enemy equipment, and disposition of captured enemy property. While it does not refer specifically to War Trophy firearms brought or sent back to the United States by soldiers, portions of the article are reflected in the various issues of War Department Circular publications that constituted military orders for defining and bringing or shipping War Trophy firearms to the United States. This article may be cited as "Captured Enemy Property: Booty of War and Seized Enemy Property," by William Gerald Downey, Jr., American Journal of International Law, Vol. 44 (1950), pages 488-504.
   
War Trophy firearm records at National Archives II, College Park, Maryland
In December 2008, Eric M. Larson obtained copies of War Trophy firearm records stored at National Archives II in College Park, Maryland. These records are important for research and historical purposes because they reliably document many regulations, orders, and correspondence involving War Trophy firearms that were created by the Department of War, covering the period from 1934 to 1950. Unfortunately, the records at National Archives II do not include copies of Certificates used to authorize soldiers to bring or send firearms back to the United States; however, the records include what appear to be a complete set of the War Department Circulars in which regulations involving War Trophy firearms were published, as well as ancillary paperwork that discusses reasons for changes in War Trophy regulations in the Circulars. The documents copied from each box are summarized below, but it is recommended that researchers review Mr. Larson's notes (click here to read them) to better understand how and why he identified the documents posted here, how to locate them at National Archives II, and how they are indexed there.

Record Group 165, Box 208 (8 pages, click here to read)

Memorandum for Colonel Pasco from A.D. Surles, Major General, U.S.A, Director, Bureau of Public Relations, War Department, 22 August 1945
Undated press release for TIME Magazine on Marlene Dietrich and War Trophy firearms
Memorandum on amending War Department Circular 155 by William A. Walker, Colonel, GSC, Deputy Chief, Current Group, OPD, 3 August 1945
Memorandum on amending War Department Circular 155, by Thomas North, Brigadier General, GSC, Chief, Current Group, OPD, 29 July 1945

Record Group 165, Box 307 (13 pages, click here to read)

Memorandum for the Secretary, General Staff, on War Trophies, by Harry H. Mole, Colonel, GSC, Deputy Director of Intelligence, 31 May 1946
Memorandum on maintaining War Department Circular 107, by W. S. Paul, Major General, GSC, Director of Personnel & Administration, 5 September 1946
Summary of regulations on War Trophy firearms, by J. M. Roamer, Colonel, GSC, Director of Intelligence, 27 May 1946
Letter to the Secretary of the Navy on War Trophy firearms, by Robert B. Patterson, Secretary of War, 12 June 1946
Incorrect Classification Sheet, War Department Circular 155, 16 October 1945
Memorandum on disposition of War Trophy firearms, by R. L. Maxwell, Major General, GSC, Assistant Chief of Staff, G-4, 2 March 1946
Letter to Senator Chan Gurney on disposition of War Trophy firearms, by Robert B. Patterson, Secretary of War, 15 February 1946

Record Group 407, Box 2967 (56 pages, click here to read)

Cover sheet for files on "War Trophies, WD Cir. 155, Sec. VI, 1945"
Indexing and filing sheet for War Department Circulars involving War Trophy firearms
Memorandum for the Adjutant General on revision of Cricular 353, by J. M. Roamer, Colonel, GSC, Director of Intelligence, 23 May 1945
War Department Circular 133, 28 May 1945
Memorandum for the Adjutant General on revision of Circular 353, by J. M. Roamer, Colonel, GSC, Director of Intelligence, 29 August 1945
War Department Circular No. 267, 5 September 1945
Memorandum for the Adjutant General on revision of Circular 155, by J. M. Roamer, Colonel, GSC, Director of Intelligence, 16 October 1945
War Department Circular No. 320, 19 October 1945
Memorandum for the Adjutant General on revision of Circular 155, by J. M. Roamer, Colonel, GSC, Director of Intelligence, 26 February 1946
Comment on revisions to Circular 155 and Circular 267, by Earl S. Hoag, Brigadier General, GSC, Deputy Assistant Chief of Staff, G-4, 15 March 1946
Comment on revisions to Circular 155 and Circular 267, by Peter C. Hains, 3rd, Colonel, GSC, Chief, Projects Branch, 2 April 1946
War Department Circular No. 107, 12 April 1946
War Department Circular No. 122, 27 April 1946
Comment on amending Circular 107, by Edward F. Witsell, Maj. Gen., The Adjutant General, 29 April 1947
Comments on amending Circular 107, by Alton C. Miller, Col., CMP, Chief, Provost Division, 11 April 1947
Comments on amending Circular 107, by Geo. S. Price, Colonel, GSC, Chief, Military Personnel Service Group, Personnel & Administrative Division, WDGS, 28 March 1947
Comments on amending Circular 107, Edward F. Witsell, Major General, The Adjutant General, 10 September 1947
Comments on amending Circular 107, by LeR. Lites, Lieutenant General, GSC, Director of Service, Supply and Procurement and K. Al. McCrimmon, Lt. Colonel, GAS, Service, Supply & Procurement Division, 15 September 1947
Memorandum for Record on Expiration of Section IV, WE Circular 107, 10 September 1947
War Department Circular No. 5, 23 September 1947
Memorandum (?) on updating Circular 107, by Cheney L. Bertholf, Colonel, AGD, Chief, Operations Branch, AGO, 2 November 1948
Order extending Circular 107 to 1 May 1950, by Omar N. Bradley, Chief of Staff, United States Army, 19 October 1948
Partial documentation discussing Circular 107, dated November 1948
Letter to Colonel Strecker from John W. Keys, Mineral Springs, Arkansas, 28 July 1945, regarding a confiscated machine gun
Letter to John W. Keyes from W. C. Strecker, Colonel, GSC, Chief, Technical Intelligence Branch, Intelligence Division, regarding the confiscated machine gun, 4 August 1945
Letter to Senator J. W. Fulbright from Wilton B. Persons, Major General, GSC, Chief, Legislative and Liaison Division, offering a replacement machine gun to Mr. Keys, 24 August 1945
Memorandum to the Adjutant General on an apparent violation of Circular 155 involving War Trophy firearms, by Wm. F. Pearson, Colonel, General Staff Corps, Liaison, 29 November 1945
Memorandum to War Department Liaison Officer regarding War Trophy firearms shipped to the United States by Herman H. Goldstein, by Edward F. Witsell, Major General, Acting The Adjutant General, 6 December 1945
Letter to Major General Edward T. Witsell, The Adjutant General, regarding Japanese swords as War Trophies, by James E. Armstrong, Secretary, Committee on Interstate Commerce, United States Senate, 16 November 1945
Letter to Senator Homer E. Capehart regarding War Trophy firearms, by H. N. Gilbert, Major General, Acting The Adjutant General, 21 November 1945
Letter to Senator Walter F. George regarding War Trophy firearms, by William K. Inman, Captain, Hq. 4th Armored Division, APO 254, 21 September 1945
Memorandum for War Department Liaison Officer on "Permission for Servicemen to Retain Captured Weapons," by Edward F. Witsell, Major General, Acting The Adjutant General, 18 October 1945
Communication from Secretary of State to the Secretary of War, regarding "the possibility of German pistols or machine guns" being brought into the United States by merchant seamen, 31 August 1945
Letter to American Embassy, Paris, France, regarding firearms brought to the United States by merchant seamen, by Clara Colford Doreau, undated
Letter to Secretary of State regarding German pistols or machine guns being brought to the United States by merchant seamen and others, by Henry L. Stimson, Secretary of War, 13 September 1945
Memorandum for the Deputy Chief of Staff regarding War Trophy firearms being retained by civilians who served with the United States Army overseas, by LeR. Lutes, Lieutentant General, USA, Commanding, 1 August 1945
Letter to Senator Guy Cordon regarding War Trophy firearms, by John W. Martyn, Administrative Assistant to Colonel J. M. Roamer, Director of Intelligence, ASF, Room 3E 584, Pentagon, 7 May 1945
Index sheet for revision of Circular 353
Letter/Memorandum (?) from Headquarters, Mediterranean Theater of Operations, United States Army, on War Trophy firearms acquired under Circular 3535, by C. W. Christenberry, Colonel, AGD, Adjutant General, 4 March 1945

Record Group 407, Box 2968 (20 pages, click here to read)

War Department Circular No. 217, 1 June 1944
War Department Circular No. 353, 31 August 1944
Summary for record on revision of Circular 353, by F. A. Helleman, Major General, GSC, Director of Supply, ASF, 12 April 1945, 21 April 1945
Comments on revisions of Circular 353, by I. H. Edwards, Major General, GSC, Assistant Chief of Staff, G-3, 21 April 1945
Memorandum (?) discussing civilians being allowed to retain War Trophy firearms, order of the Secretary of War, 5 October 1943
Memorandum by the Secretary of War on "Retention of Captured Materiel Trophies by Military Personnel," 19 July 1943


   

Examples of approved "Certificates" for World War II era War Trophy firearms which include Bureau of Customs declarations
These approved certificates for War Trophy items declared under Circular 353 and Circular 155, accompanied by Bureau of Customs declaration forms, illustrate yet another aspect of how War Trophy firearms were brought or sent back to the United States by soldiers.

Note that the "Certificate of Retention and Customs Declaration" and the "Individual Certificate, Affidavites [sic], and Customs Declaration" (the latter has "(APPENDIX 0)" printed in the bottom center of the document and does not appear in this scan) incorporate language stating that the "Theater Commander" has authorized the bearer to import the listed items into the United States. It is unclear whether ATF would regard such declarations as acceptable substitutes for Form 6; however, it would be difficult to argue that firearms imported under the authority of such certifications had not been legally imported.

It is possible that further research will disclose further details of how War Trophy firearms were sent or brought back to the United States by soldiers, under military and other laws and regulations in effect during the World War II era.
   

Examples of an approved Form 6, dated September 16, 1946, for a War Trophy firearm (inoperable machine gun)
This example of an approved Form 6, authorizing the importation of an inoperable MP-40 machine gun by an individual, is instructive because it is also an example of the version of Form 6 that became effective in August 1940, and thus was in use during World War II.

ATF regards an approved Form 6 as a legitimate registration document for an NFA firearm. Form 6 may or may not have been used in conjunction with machine guns or other NFA firearms that were brought or sent back to the United States by soldiers under provisions of War Department Circulars, in particular No. 217 (effective June 1, 1944) and No. 353 (effective August 31, 1944). Circular No. 155, effective May 28, 1945, prohibited soldiers from bringing or sending machine guns back to the United States. According to these circulars, Bureau of Customs officials collected approved certificates that authorized the bearer to bring or send machine guns back to the United States; it is unclear whether these approved certificates were accepted in lieu of Form 6 or not. At least one MP-40 machine gun that was identified in a certificate under Circular No. 353, described elsewhere in this section, was determined by ATF in 2007 to be a registered NFA firearm, indicating that it had been imported and accepted for registration by some means presumed lawful.

It appears that the first military regulation involving War Trophy firearms during World War II may be "Memorandum No. W570-3-43, 22 July 1943, subject Retention of Captured Material Trophies by Military Personnel," which is referred to in and rescinded by Circular No. 217.
   

Examples of approved "Certificates" for War Trophies other than firearms under War Department Circular No. 353 (August 31, 1944) and No. 217 (June 1, 1944)
These approved certificates for War Trophy items other than firearms, two of which were under Circular 217 (effective June 1, 1944), and four of which were under Circular 353 (which superceded Circular 217 effective August 31, 1944), were issued to the same soldier who brought back two German MP-40 machine guns under Circular 353, described elsewhere. These certificates are instructive because all of them were issued and approved after the Circulars under which they were issued had been superceded, and because they give a flavor of the atmosphere under which War Trophies were sent or brought back to the United States.

Click here to read a copy of War Department Circular 353; and click here to read a copy of War Department Circular 217, both copied at National Archives II, College Park, Maryland, located in Record Group 407, Box 2968.
   

Example of approved "Certificate" for machine guns under War Department Circular No. 353, effective August 31, 1944
Various War Department Circulars issued during and after World War II were used to implement regulations on bringing or sending War Trophy firearms back to the United States. The provisions of Section III of Circular No. 353, effective August 31, 1944, did not prohibit soldiers from bringing or sending machine guns back to the United States. This certificate, approved June 27, 1945, authorized the bearer to bring back two MP-40 German machine guns, and had to be "signed by his superior officer, stating that the bearer is officially authorized by the theater commander, under the provisions of this circular, to retain as his personal property the articles listed on the certificate."

This certificate is of historical interest, in part, because it (1) approved the bringing back of machine guns after Section III of Circular No. 353 was superceded by Section VI of Circular 155, effective May 28, 1945, which prohibited bringing or sending back automatic weapons, and (2) the heir who inherited these MP-40 machine guns contacted ATF in 2007 to arrange for their lawful transfer, and ATF was able to locate a registration for only one of the machine guns. It would seem illogical for the solider to have registered one of the MP-40s, but not the other. Did ATF lose or destroy the registration document for the other MP-40? This soldier had brought back various War Trophies that were not firearms, and appeared diligent in following regulations in six additional approved certificates, two of which were under Circular 217 (effective June 1, 1944), and four of which were under Circular 353 (which superceded Circular 217 effective August 31, 1944).

Because (3) Section 3(b)(3) of Circular 155, Section IV(3)(B)(3), effective May 28, 1945, prohibited "Firearms of the automatic type (or component parts) such as machine guns, submachine guns, or any type gun in which a number of shots or bullets may be discharged with one continuous pull of the trigger," an argument could be made that this bringback under Circular 353 on June 27, 1945, was in violation of existing regulations.

It is difficult to know what to make of this approved certificate, in light of the prohibition then in effect on including machine guns as War Trophy firearms. Did the authorizing official know about the provisions of Circular 155, or just not care? It is probably impossible to know, but the use of an outdated Certificate would tend to support a belief that the authorizing official did not know about Circular 155. Circular 353 states that in the case of soldiers returning with War Trophy items: "The signed duplicate certificate will be taken up by the Customs Bureau; the original will be retained by the bearer." Did Customs officials allow an importation in violation of regulations? There is no reliable way to know. Click here to read a copy of War Department Circular 353, copied at National Archives II, College Park, Maryland, located in Record Group 407, Box 2968.
   

"Marlene Dietrich's Firepower," by Larry I. Bland
This short article (click here to read it) is based on documents from the George C. Marshall Papers, and discusses how firearms seized by the Bureau of Customs from Hollywood entertainer Marlene Dietrich figured into a larger issue of War Trophy firearms being brought or sent back to the United States by soldiers during World War II, and the prohibition on civilians from doing do. It is also a good illustration of how documentation like this is scattered across the country. Interestingly, author Larry I. Bland cites documents in National Archives II in College Park, Maryland, as background, but neither quotes nor identifies any of them in his article, with the exception of identifying War Department Circular No. 155 in a footnote. The other documents are worth mentioning here, given the relationship they bear to the article.

In Record Group 165, Box 307, is a Memorandum dated May 31, 1946, from Harry N. Mole, Colonel, GSC, Deputy Director of Intelligence, for the Secretary, General Staff, in denying the appeal of a civilian to bring back a War Trophy firearm, noted that "several prominent citizens . . . had forfeited enemy firearms to the Bureau of Customs" (including Marlene Dietrich), and no exceptions had been made for them.

In Record Group 165, Box 208, is a copy of a press release about the Dietrich case to TIME Magazine, and an explanatory Memorandum dated August 23, 1945, from A. D. Surles to Col. H. Merrill Pasco, and refers to Col. Pasco's Memorandum on War Trophy firearms to General Marshall, which undoubtedly makes reference to the August 1, 1945, Memorandum cited by Mr. Bland in his article.

Record Group 407, Box 2967, contains a Memorandum for the Deputy Chief of Staff ("Subject: War Trophies") dated August 1, 1945, from LeR Lutes, Lieutenant General, which states: "One of the provisions of these regulations prohibits United States civilians serving with the United States Army overseas from bringing or mailing back of military firearms," and mentions several civilians whose War Trophy firearms were confiscated, including Marlene Dietrich. There is also an inquiry dated August 31, 1945, from the Secretary of State to the Secretary of War, referring to an American citizen married to a Frenchman, who inquired about the "possibility of German pistols or machine guns" being brought to the United States by merchant seamen, and requested the Secretary of War to inform State of "any regulations that may be issued relative to the control of such shipments and any other actions that may be taken." In a letter dated September 13, 1945, Secretary of War Henry L. Stimson noted that War Department Circular No. 155 prohibited shipping or bringing back machine guns, and that War Trophy pistols were limited to one per soldier.
   

ATF Director testifies before House Judiciary Committee that registered NFA firearms are not a law enforcement problem
Stephen E. Higgins, BATF director, testifies before Congress in 1984 about the criminal misuse and availability of machineguns and silencers. The BATF director clearly states that in the BATF's experience, legally registered NFA weapons are not used in crimes. These hearings may be cited as "Armor Piercing Ammunition and the Criminal Misuse and Availablility of Machineguns and Silencers." Hearings Before the Subcommittee on Crime, Committee on the Judiciary, House of Representatives, 89th Congress, 2nd Session, on H.R. 641 and Related Bills, May 17, 24 and June 27, 1984. Serial No. 153. Washington, D.C.: U.S. Government Printing Office, 1986.
   
2004 ATF letter on inheritance
ATF letter from Lewis P. Raden, Assistant Director (Enforcement Programs and Services), ATF, to Eric M. Larson dated August 24, 2004, bearing symbols CC-82,457 FE:TH, regarding procedures for transferring National Firearms Act (NFA) firearms after the owner of the firearm has died.
   
Summary of Ken Crane/DEWAT case and related issues
"Time to Protect War Trophies," by Eric M. Larson, published in Shotgun News, Volume 58, Issue 21, August 2, 2004, pages 52-53. NFAOA is grateful to Mr. Robert W. Hunnicutt, General Manager and Editor, SHOTGUN NEWS, for kindly granting permission to post this article. This article discusses ATF's decision to reverse a determination that a DEWAT machine gun was contraband, based on evidence that ATF had always possessed since receiving an application to transfer ownership of the DEWAT, and issues involving "Lawful possession of a machinegun that was lawfully possessed" under Section 922(o) of Title 18, United States Code.
   
ATF response to FOIA on 1943-46 era War Trophy Program
This is ATF's response to a FOIA requesting documentation of ATF's administration of the War Trophy program during 1943-46, when members of the Armed Forces were allowed to bring or send machine guns and other NFA firearms back to the United States, and retain them as their personal property. From the documents ATF provided, it is impossible to determine how the War Trophy program was administered. Note that 37 pages of documents, all presumably relevant, were withheld in their entirety. The fact that ATF has provided other relevant documentation in the past ("Summary of Ken Crane/DEWAT case and related issues," and the "ATF-FOIA on Ken Crane/DEWAT case" in this section) but not in these FOIA results, indicates ATF may be improperly withholding public information. These FOIA results have been provided to Rep. Jim Gibbons (R-Nevada), the Department of Justice Inspector General, and other Members of Congress.
   
ATF-FOIA on Ken Crane/DEWAT case
This FOIA was filed, with a notarized permission from Ken Crane to release "tax information" if necessary, to compel ATF to disclose the reason for its decision to reverse a determination that a DEWAT Auto-Ordnance, Model M1, Machinegun bearing serial number 75977 was unregistered contraband. While "deliberative" documents are exempt from FOIA disclosure, the FOIA law does require that once an official decision is made, that all documents that were created that support or explain the basis for the decision must be disclosed. In particular, this FOIA requests ATF to disclose the legal reason that the evidence of registration that ATF always possessed as part of the application to transfer this firearm, was determined to constitute proof that the foregoing DEWAT was lawfully possessed. In fact, ATF used the same evidence to determine that the same firearm was contraband, as well as legally possessed, and declined to disclose the legal basis for its position. On page 11 of this FOIA, a document ATF created states that "In letter opinions [regarding DEWATs], ATF did not take a consistent position."
   
Letter of complaint to Senator Arlen Specter about ATF trying to illegally confiscate a lawfully possessed DEWAT from an elderly widow
In this letter, the attorney who handled the Ken Crane/DEWAT case complains to Senator Arlen Specter about ATF's failure to recognize a legitimate registration document. The attorney also refers to ATF's 2004 letter on machine gun registrations, and questions why ATF refuses to change the guidance to heirs who inherit NFA firearms, to let them know what documents ATF recognizes as proof that a DEWAT is lawfully possessed. This letter appears elsewhere in "Forums" under "Reference Materials" as "ATF letter on inheritance"
   
1945 regulations on registering "captured enemy equipment" from World War II consisting of NFA firearms
A regulation for "Registration of Firearms as defined in section 2733 of the Internal Revenue Code sent or brought into the United States by members of the armed forces" was published in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin 1945, January-December 1945, pages 457-458. During 1943-45, Army and Navy personnel "were permitted to bring or send into the United States captured enemy equipment, including firearms" as defined under the NFA.
   
1945 DEWAT program is amended by Revenue Ruling 55-590
Revenue Ruling 55-590 established procedures for transforming an NFA firearm "into a curio by the prescribed method of deactivation, under the supervision of an investigator of the Alcohol and Tobacco Tax Division" to "be known as a 'DEWAT'" that is "not a firearm within the purview of the National Firearms Act for the reason that it is incapable of firing a shot." This Ruling was published in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin 1955, July-December 1955, pages 483-484.
   
1957 Revenue Ruling clarifies that only firearms properly deactivated under supervision of ATF qualify as DEWATs
Revenue Ruling 57-227 announces that "the distinction between an 'unserviceable' firearm and a 'DEWAT' as defined in Revenue Ruling 55-590" will "be enforced in order to avoid abuses of the ruling in respect of DEWATs." This Ruling was published in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin 1957-1, January-June 1957, pages 433-434.
   
1958 Revenue Procedure establishes that only "a natural person" may transform a registered NFA firearm into a DEWAT
Revenue Procedure 58-8 limits the creation of DEWATs to NFA firearms that are registered to natural persons, and deactivated in accordance with established procedures. This Procedure was published in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin 1958-1, January-June 1958, pages 690-691.
   
1946 Memorandum describing ATF efforts to register or deactivate War Trophy firearms subject to the NFA
This IRS or ATF Memorandum dated October 1, 1946, states that "Customs Circular Letter of October 28, 1943, and War Department Circular No. 217 of June 1, 1946 permitted members of the armed forces to bring or ship into the United States as war trophies items of captured enemy equipment including machine guns and other automatic weapons subject to the National Firearms Act." Efforts to obtain copies of the foregoing documents, and related documents, via the FOIA process have been unsuccessful. The purpose of this Memorandum is apparently to describe ATF's efforts to locate and render such firearms "unserviceable."
   
1978 ATF Memorandum on "Status of a Dewat in the National Firearms Registration and Transfer Record"
In this opinion dated August 4, 1978, the ATF's Chief Counsel states that DEWATs that were created as the result of actions by persons who filed the necessary forms and transformed NFA firearms registered to them into DEWATs according to prescribed ATF standards, are considered to be registered in the NFRTR for purposes of the Gun Control Act of 1968.
   
"War Trophy Documentation 'Capture Papers' WWII--Pacific," by Jerry Price
This fascinating, well-researched article identifies no fewer than 12 examples of valid "Capture Papers" approved by U.S. military authorities, which entitled World War II soldiers to retain firearms, binoculars, flags and other so-called "War Trophy" items and for these soldiers to retain them as their personal property. These "capture papers" clearly state the legal basis for authorizing soldiers to bring or sent War Trophy firearms back to the United States. Author Jerry Price reproduces actual copies of each "capture paper" and indicates their physical sizes, as well as smaller facsimile copies containing the same information on the original for purposes of clarity of reference. Copies of this article, which was published in the November 1999 issue of BANZAI magazine, may be purchased from the Editor, Mr. Doss White, by writing to BANZAI, 331 Union Hill Church Road, Falkville, Alabama 35622, and enclosing a $4.00 check (please note what the check is for).
   
Example of approved "Certificate" for a machine gun under War Department Circular No. 155, effective May 28, 1945
Various War Department Circulars issued during and after World War II were used to implement regulations on bringing or sending War Trophy firearms back to the United States. The provisions "of Sec. VI, Cir. 155, WD, 28 May 1945," authorized the bearer to "retain as his personal property," the articles listed on this "Certificate," which had to be authorized by the "Theater Commander," in this case John H. Davis, "1ST LT CV CMDG COM B, 301 SIG OPM BN," under auspices of "Headquarters United States Forces European Theater."

This certificate is of historical interest, in part, because it (1) authorizes the bearer to bring back an 8mm German MP43 rifle, which is a machine gun, (2) attests that the items "do not include any items prohibited by Sec. VI, Cir. 155, WD, 28 May 1945," and (3) Section 3(b)(3) of Circular 155, Section IV(3)(B)(3) prohibits "Firearms of the automatic type (or component parts) such as machine guns, submachine guns, or any type gun in which a number of shots or bullets may be discharged with one continuous pull of the trigger."

It is difficult to know what to make of this approved certificate, in light of the prohibition then in effect on including machine guns as War Trophy firearms. Did the authorizing Theater Commander know about the provisions of Circular 155, or just not care? It is probably impossible to know. Because Circular 155 stated that in the case of soldiers returning with War Trophy items, "the signed duplicate certificate will be taken up by an officer of the port of embarkation (and a consolidated certificate accomplished) or by the Customs Bureau or by military authorities at the port of debarkation," it is possible that in some cases "military authorities" allowed the importation nevertheless, possibly sympathetic to their comrades in arms, but this is a conjecture. Customs officials may have been less likely to allow an importation in violation of regulations but, again, there is no reliable way to know. Click here to read a copy of War Department Circular 155, copied at National Archives II, College Park, Maryland, located in Record Group 407, Box 2967.
   

1956 ATF materials on "War Trophy Deactivation Program"
This undated letter from Assistant Regional Commissioner W. E. Dunigan, Alcohol & Tobacco Tax Division, IRS, describes "a final drive" by the U.S. Treasury Department "to deactivate dangerous war trophy firearms . . . without cost to the firearm owner and without damage to the souvenir value." An accompanying poster dated January 1956 advises readers "Gangster Shoots Officer and Bystander With Trophy Gun," "Souvenir Machine Gun Explodes Killing Mother and Child," and depicts various cautionary symbolic images.
   
Example of the registration of unregistered NFA firearm by a lawful heir in 1946
This example of the registration of an unregistered NFA firearm acquired by inheritance was approved and received for registration on February 12, 1946, in this case for a shoulder-stocked Luger pistol. The NFA did not require payment of any tax or fee for an original registration. According to Regulations 88 for 1941, every person who "acquired" an unregistered NFA firearm not registered to him after June 26, 1934, "must register such firearm on Form 1 (Firearms) in duplicate, with the [Internal Revenue] collector for the district in which such person resides" (Sec. 319.31, page 19). Under the original NFA, an original registrant was not required to provide a photograph or fingerprints; such requirements only applied to a subsequent transfer, provisions that survived during the amnesty period under the National Firearms Act of 1968 (also known as Title II of the Gun Control Act of 1968). Specifically, a person who possessed an unregistered NFA firearm was required to register it using Form 4467 during the period from November 2, 1968, to December 1, 1968, and was not required to submit fingerprints or a photograph, or pay any tax or fee. As was the case under the original NFA, fingerprints and a photograph were required only for a subsequent transfer, in which a transfer tax may or may not apply.
   
Ken Crane's complaint to the Department of Justice Inspector General, March 1, 2003
Ken Crane filed a detailed complaint with the Department of Justice Inspector General in a letter dated March 1, 2003, which contains 18 exhibits that detail every aspect of ATF's attempts to unjustly seize and forfeit, as well as to improperly attempt to intimidate an 80-year-old widow who inherited a DEWAT from her late husband into "voluntarily abandoning" the gun. This is the primary source material Eric M. Larson used to write the article "Time to Protect War Trophies," published in Shotgun News, Volume 58, Issue 21, August 2, 2004, which is reproduced elsewhere in this section.
   
Staples vs. United States, 511 U.S. 600 (1994) [reversed case law on illegal possession of NFA firearm]
James Bardwell's comments on Staples vs. United States, quoted from his mirror web site: "This is also a very interesting case, where the Supreme Court reversed the 10th circuit and decided that in order to convict someone under the NFA of possessing an unregistered (untaxed) weapon, they must prove the defendant knew it was the sort of gun regulated by the NFA. In this case they had to show the defendant knew the rifle in question was fully automatic. This case was really answered in the Freed case [United States vs. Freed, 401 U.S. 601 (1971)], where the court said part of a violation of the NFA was the defendant's knowing the weapons in question were the sort subject to regulation. Freed held explicitly, and Staples didn't touch, that the government need not prove the defendant knew about the registration stuff, only the nature of the weapon that made it subject to registration. Lower courts had however been ignoring Freed, claiming the government needed to only show the guns were in fact the sort regulated, regardless of whether the defendant knew they had that feature. In Freed the NFA weapons were hand grenades, which made showing the defendant knew the nature of the weapons sort of irrelevant, although I guess there could have been an issue about whether he knew there was explosive material inside them. However with an mg, it can appear to be a regular semi-auto. This case will end a lot of stupid prosecution, for possessing a weapon that didn't work, but the feds could work on till it did, or for the feds to tape together parts kits - they can do whatever they want, but they will have to prove the defendant knew the thing was a machine gun, not just that they could make it behave as one."
   
United States vs. Whalen, 227 F. Supp. 1012 (S.D.N.Y. 1972) [early DEWAT case]
An interesting aspect of Staples vs. United States, 511 U.S. 600 (1994), posted elsewhere in this section, is that it would affect on a case such as this one were it to be brought for prosecution. The reason is that under case law that existed at the time of United States vs. Whalen, all the Government had to do was prove that the defendant knew that the DEWATs were firearms in the ordinary sense, not that they were illegal firearms. What's the difference today, because of Staples? Simply that if a widow or heir encounters a DEWAT or even a live machine gun in an estate, and ATF through some manner learns about it and charges the widow or heir with illegally possessing a machine gun, Staples requires that ATF must prove that the widow or heir knew that the firearm was illegal to possess to obtain a conviction. With circumstances such as those in the Ken Crane/DEWAT case, where a person possesses ATF-issued paperwork, ATF would clearly have had a difficult time with a prosecution or seizure and forfeiture, aside from the fact that ATF doesn't want to litigate the definition of a "registered" NFA firearm or device in any Federal District Court.

James Bardwell's comments on United States vs. Whalen, quoted from his mirror web site. "This is a sad one. It happened soon after the 1968 Amnesty, (1970) and after the change to require DEWAT's be registered. Whalen was a cop from Westchester County, NY who had a bunch of mg's (9) acquired while he was a cop. Even though they were live while he was a cop they were apparently not registered. When he left the force he had them welded up, and only one was ever registered as a DEWAT. Then he put an ad in the paper to sell his war memorabilia collection, including the mg's. Needless to say, the folks who showed up with cash were ATF agents. He got busted for 8 counts of unregistered mg's, and 9 counts of transfer without the tax (ATF didn't like the welding job), or an application. The issue here was, were DEWAT's now subject to registration, and the NFA? The court said yes. I don't know what happened to Whalen, he had some defenses to raise at trial as well (like the sufficiency of the DEWATting (as to the tax), and whether he had actually tried to transfer the guns, ATF may have arrested him too early in the negotiations...). The court goes over the ATT Rulings that created the DEWAT program, and the legal distinction between a DEWAT and an unserviceable gun, which was erased by the 1968 changes to the NFA. The case also notes ATF retained all the initial registrations of guns that were re-made as DEWATs and removed from the need to have a transfer application after that. A gun was supposed to be registered, then if it was steel welded in front of an ATT inspector, the gun need not be transferred in compliance with the NFA (i.e., sold by mail without a transfer, or tax). According to the 1980 Senate hearings into the ATF, the DEWAT records were destroyed, without any legal justification, at some point before 1975. This case cites the three Revenue Rulings that created the DEWAT program, and which are on the server as well." NOTE: All the Revenue Rulings cited in United States vs. Whalen are also posted in this section.
   

 Legal issues regarding the accuracy and completeness of the NFRTR
In June 2010, ATF Deputy Director responds to citizen concerns about the legal validity of NFRTR evidence
On June 8, 2010, a citizen wrote to ATF Deputy Director Kenneth Melson, citing testimony by an Expert Witness in a 2009 criminal case "that NFRTR data were useful for exploratory purposes, but could not be used for prosecution unless the data could be independently verified," and expressed concerns about the legal validity of ATF routinely using evidence from NFRTR lookups "to justify issuing search warrants, filing criminal charges, and other law enforcement activities." On June 9, 2010, Deputy Director Melson responded: "I will make sure we look into this." To read a copy of the e-mail message and the response, click here. In a letter dated August 30, 2010, Arthur Herbert, Assistant Director, Office of Enforcement Programs and Services, discussed the concerns by failing to acknowledge firearm registration and/or transfer documents are missing from ATF's version of the NFRTR (click here to read it). He states: "The inspection records upon which you based your conclusions are worksheets prepared by ATF investigators to note potential discrepancies in the NFRTR. The inspection inventory worksheets generated by investigators are merely the preliminary tools used by ATF for inventory reconciliation. They are not a record of the final outcome of NFRTR and application archive research or final inventory reconciliation." This answer is incorrect, uninformative, and misleading. Put another way, Mr. Herbert is saying "you have incorrectly concluded the NFRTR has missing records, because ATF has not had the opportunity to add the missing records its investigators discovered back into the NFRTR yet." Mr. Herbert further states: " . . . the NFRTR cannot possibly reflect transactions that have not been reported to ATF . . . ". Mr. Herbert clearly has no idea of how transfer documents work. Countless transfers to dealers from dealers and from individuals have been approved, but are not in the NFRTR compliance record brought to the dealers on inspections. Every one of these transfers was reported to ATF by appropriate transfer forms, were approved and returned and then the NFA firearm or device was transferred in compliance, yet ATF will not have records of them during inspections. The dealers are then required to prove to ATF that the approved transfers exist and that the NFA firearm or device was appropriately transferred out or in or wherever. It is not possible to not report a transfer to ATF and then transfer an NFA item. No one ever does this.

During the latter part of June 2010, ATF created an updated PowerPoint presentation entitled "OVERVIEW OF NATIONAL FIREARMS ACT: ROLL CALL TRAINING," which was made available to all ATF employees (click here to see it). Slide 39 states:

--The NFRTR System is an effective investigative tool in determining whether an inquiry is worth pursuing; however, an "official" NFRTR must be obtained for purposes of "probable cause" for a warrant or for conducting a compliance inspection of an NFA dealer, manufacturer or importer.

--The "official" NFRTR is only available from the NFA Branch.

--Sealed certificates must be requested for Court.

The language in the first bullet of Slide 39 is nearly identical to language in the e-mail message to Deputy Director Melson, and implies that a higher standard of evaluation has now been formally implemented for review of NFRTR evidence than has been in the case in the past. Whether or to what extent ATF has made "unofficial" use of NFRTR data was not addressed in the presentation.

According to documentation released August 3, 2010, in response to a FOIA request (click here to read it) for documents that provided the basis for the "OVERVIEW OF NATIONAL FIREARMS ACT: ROLL CALL TRAINING" slide presentation, it was "developed" on June 16, 2010, for "Special Agent and Industry Operations Investigator personnel," and was accompanied by 22 pages of "LESSON OBJECTIVES." A note on page 22 of the lesson objectives states: "IOIs should not discuss the reconciliation of the NFRTR to the inventory on-hand with the FFL during an inspection. Coordinate reconciliation from inspection findings with the NFA Branch upon returning to the office and include in the inspection report."

On page 18 of the lesson objectives, SAs and IOIs are instructed: "The NFRTR system is an effective investigative tool in determining whether an inquiry is worth pursuing, however, an 'official' NFRTR must be obtained for purposes of 'probable cause' for a warrant or for conducting a compliance inspection of an NFA dealer, manufacturer or importer." The lesson objective also states: "The 'official' NFRTR is only available from the NFA Branch," but, again, no definition of the "official" NFRTR is stated. Defense counsel would be advised, in a case involving apparently discrepant and/or missing NFRTR records, to obtain documentation through Discovery of what is meant by the "official" NFRTR and the implications of the past use of an "unofficial" NFRTR. It might also be useful to ask ATF how it justified including transactions in NFA firearms or devices on the revised Form 4473 in August 2008, inasmuch as it duplicates the record-keeping in the NFRTR and might be viewed as committing waste of public resources. But it seems obvious that NFRTR transactions are also recorded on Forms 4473 because of significant and continuing problems with the accuracy and completeness of the NFRTR. An ATF Special Agent remarked in August 2010: "All I know is the NFRTR is a mess. What to do about it I'm not sure."

Concurrently available with the PowerPoint presentation is a Memorandum dated December 4, 2007, (click here to read it) which states "there has not always been a consistent procedure for reconciling inventory discrepancy reports sent to the NFA Branch by Industry Operations Investigators (IOIs)." The Memorandum also notes that "[t]he NFA Branch has no independent means of validating" NFRTR data "from applications submitted by [firearm] industry members and law enforcement agencies," and that field inspections "serve as an important quality assurance check on NFRTR data not previously validated by an independent, physical examination of a weapon." This latter statement appears to acknowledge that ATF has been aware for some time that its NFRTR description of an NFA firearm or device may not be accurate.

For example, a criminal case that stretched out during 2008 and 2009 showed that ATF has no real knowledge of what actually happened when machine guns were manufactured and registered during the period from November 2, 1968, to May 19, 1986. This is demonstrated conclusively by the Friesen case, discussed elsewhere on this site. ATF talked Assistant United States Attorney Edward Kumiega into believing that 25 examples of STEN machine guns manufactured and registered by Charles Erb would all be exactly alike; subpoenaed all 25 guns and brought them into evidence; and believed this would show that the STEN allegedly manufactured by defendant Douglas Friesen would stick out like a sore thumb. In fact, none of the STENs were alike, and ATF blew the case because of it. The descriptions of the STENs on ATF's version of the NFRTR simply did not match the guns. Two of the machine guns were Sterlings! Serial number fonts were different. One was just a tube, not a gun. The markings were missing and/or inconsistent. ATF won't be trotting out that "evidence" any time soon, though it could be discoverable depending on the case, because it reliably impeaches the "firearm description" aspect of the NFRTR.

Also of interest in the FOIA release dated August 3, 2010 is what appears to be a page from what ATF refers to as the IOI Handbook ATF H5030.2C, which is used by Industry Operations Investigators (IOIs), but may also be an instruction to what are now called Legal Document Examiners (NFA Branch employees who approve transfer applications). Click here to read it. The page was not, however, specifically attributed to a source by any of the materials in the FOIA, so it could be part of some other type of manual, such as from the NFA Branch or other ATF component. What stands out is the instruction to look in old paper files if the registration was prior to 1983. But how would anybody at ATF know whether the registration was prior to 1983? More baldly, the instruction suggests that not all the registration data from an old paper-based system were transferred into whatever presumably automated/electronic data base system being used now. If ATF is still telling their own folks to check paper records from 1983 and earlier, what does that say about how accurate and complete ATF regards the NFRTR right now?

The other thing that stands out is the reference to firearms manufactured on or before May 19, 1986, a presumable reference to machine guns. The instruction to refuse to accept a manufacturer's copy of a Form 2 is puzzling because (1) ATF returns an approved Form 2 to the manufacturer, along with a notation of the date it was received, and (2) ATF is currently using manufacturer's copies of approved Forms 2 to make corrections in the NFRTR by adding a record of registration, such as are shown in copies of documents from FOIA release 08-726, posted below.

The records of missing NFRTR documents included under FOIA release 08-726 (click here to read them), were not disclosed until after the plea bargain in the Friesen case was completed. Had those documents been timely disclosed (defense counsel had requested them in Discovery, without results), the motion in limine filed in Friesen (click here to read it) would have been more complete. Arguably, ATF's failure to disclose the records of missing NFRTR documents in Friesen constitutes withholding potentially exculpatory evidence (Brady material) and obstruction of justice.

It is also possible a court may find that NFRTR data are unreliable and should be excluded as evidence in criminal cases. In Herring vs. United States (2009) (click here to read it), the Supreme Court decided: "We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule . . . . If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation." The evidence cited in this section may show that ATF has relied on "systemic error or reckless disregard of constitutional requirements," and thus trigger the exclusionary rule.

Slide 39 also seems to confirm that top ATF management is becoming more aware that the NFRTR would be unable to withstand the scrutiny that certain kinds of federal criminal prosecutions would bring. One logical outcome of this realization is that as defense counsel and U.S. Attorneys become familiar with NFRTR issues, ATF may be careful to present cases that (1) do not use any NFRTR data, or (2) NFRTR data which are presented as evidence have been independently confirmed as valid and reliable. It also seems likely there maybe more seizures and forfeitures instead of criminal charges, and perhaps fewer cases in which a gun owner is encouraged to "voluntarily abandon" an NFR firearm or device, as U.S. Attorneys become more and more aware of the problems with raw NFRTR evidence that has not been independently validated.

Because of long-standing efforts by ATF, the Treasury Department Inspector General, and the Department of Justice Inspector General to willfully cover up materially significant errors in the NFRTR, NFAOA has necessarily been skeptical of implications that these long-standing problems will be resolved, and the NFRTR rendered accurate and complete. Regarding the latter, it is clear that much work remains to be done -- perhaps establishing a new amnesty period. In the meantime, however, it would be remiss of NFAOA not to acknowledge the significant action that Deputy Director Melson has initiated, because it is the clearest action to date by ATF that acknowledges there are problems with the legal validity of some NFRTR evidence.

ATF releases evidence it has added firearms to the NFRTR after obtaining SOT records
In June 2009, ATF began releasing documents in response to a FOIA request that was filed in 2007, requesting copies of the Work Papers used as evidence in the Department of Justice Inspector General's "review" of the NFRTR, entitled The Bureau of Alcohol, Tobacco, Firearms and Explosives' National Firearms Registration and Transfer Record, Report Number I-2007-006, June 2007 (click here to read it).

Further background on this FOIA request is discussed in the entry entitled "ATF uses new form to identify 'discrepancies' in the NFRTR" in this section, and will not be repeated here in the interest of conserving space and in reporting new information. NOTE: Anybody can request copies of these documents. Although ATF is still processing this FOIA, the information released so far is too important to wait upon the release to be completed before making these documents public. To obtain copies, do a FOIA to request the same documents that are being released to Eric M. Larson, P.O. Box 5497, Takoma Park, Maryland 20913, under the release identified as 08-726.

What's new is that ATF has released hundreds of pages of evidence that it has added firearms to the NFRTR after obtaining evidence from Special Occupational Taxpayer (SOT) FFL dealers. It has been common knowledge for a number of years that ATF has been using SOT records to correct its version of the NFRTR. The two documents reproduced here are representative of hundreds of other such documents.

As previously noted, ATF heavily redacted its "Firearms Inspection Worknote: NFA Inventory Discrepancies" document, whose obvious "purpose" was to correct the NFRTR. In releases of documents for this FOIA request, ATF has provided a considerable amount of information that had been previously redacted (click here to read it), thus confirming the evidentiary nature and value of the document.

In this document (click here to read it), ATF has provided evidence that ATF had no record of 3 (three) silencers in an SOT's inventory from 2001 to 2003.

On May 13, 2010, ATF released additional documents, 10 of which are shown to provide some variation in the examples listed so far (click here to read them), in what ATF has termed the 7th release, containing 300 pages. Each page is number stamped using a Bates numbering machine stamp. Page 050 identifies four NFA firearms received by the licensee during 1993 to 1994; note that each of these NFA firearms was "Not on the NFA Br Inventory print/out," and that each of them was in the licensee's inventory on April 25, 2006, indicating that there was no record of any of these NFA firearms in the NFRTR for more than 10 years. For many of the pages (078 to 081), the "Nature of the discrepancy" between the licensee's records and the NFRTR is that the NFA firearms in the licensee's inventory were "Not in NFA Records." If this isn't evidence the NFRTR is incomplete and, therefore, inaccurate, what is? This FOIA contains hundreds of such pages.

For the benefit of SOTs, attorneys and Government officials who may have interest in these materials, the documents ATF has released so far are as listed below, and additional documents will be added as received. Inspection of the records released so far indicate more than 800 instances of an NFA firearm or device in an SOT's inventory, for which the SOT had his or her copy of an ATF-approved Form 2 or Form 3 (or other document issued by ATF), for which there was no record in the NFRTR.

Release #1, June 18, 2009; click here to read it.
Release #2, September 22, 2009; click here to read it.
Release #3, October 5, 2009; click here to read it.
Release #4, October 27, 2009; click here to read it.
Release #5, December 18, 2009; click here to read it.
Release #6, February 27, 2010; click here to read it.
Release #7, May 13, 2010; click here to read it.

In Herring vs. United States (2009), the Supreme Court decided: "We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule . . . . If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation." Reliance on "systemic error or reckless disregard of constitutional requirements" would trigger the exclusionary rule. Click here to read the decision.

While in theory ATF might be able to correct its version of the NFRTR, given enough compliance inspections, there's a vaster hole in that logic than can ever be addressed. The reason is that ATF has no means of making these sorts of corrections in many instances where ATF has approved transfers of NFA firearms or devices between unlicensed transferors and transferees who live in the same state, and are not required to keep records. What happens when James buys a machine gun from Robert in 1985 (or some other year); ATF approves that transaction; Robert takes possession of the machine gun in a timely way; Robert loses his copy of the Form 4 because there was a house fire, flood like Katrina, or just plain human error, and asks ATF for a replacement copy. ATF checks the NFRTR and finds only that the machine gun is registered to James, who died in 1987; whose relatives/survivors recall "Yes, there were some guns, but we don't know anything about them, or in fact anything about guns because guns don't interest us." Where does that leave Robert? The insidious thing about this is that many people who are likely to be victimized are people who only did their best to follow the law. An ATF Special Agent does a lookup on, for example, an amnesty gun that the owner (or heir) recall was registered, and the single piece of paper at ATF's end has vanished, lost or destroyed, or cannot be found. Virtually nobody fights an ATF Special Agent suggesting that "charges here can be avoided if you voluntarily abandon the weapon to ATF, but remember the statute of limitations on your violation is 3 years." The cost of fighting a seizure and forfeiture quickly exceeds the value of the firearm, and is a serious personal disruption.

What else about this? It is worth noting that ATF refused to release any of these Work Papers in the Friesen case, and their significance is clear in the Motion in Limine filed in the case (click here to read it), because they provide valid and reliable evidence that demonstrates the legal basis for the Department of Justice Inspector General's finding that ATF has added firearms back into the NFRTR after losing or destroying NFA paperwork. The legal repurcussions are frightening, in the sense that at least some innocent citizens have been unlawfully deprived of their valuable firearms, some of them heirloom firearms used by a grandfather, father, and son; irreplaceable family artifacts. The American people deserve a better standard of justice by a federal law enforcement agency.

As noted elsewhere in discussion on this site, the Department of Justice Inspector General's "review" of the NFRTR states on page 31: "If the NFA weapons owner [sic] can produce the registration paperwork, ATF assumes the error is in the NFRTR and fixes it in the database." This condition apparently fulfills a Department of Justice standard for requiring a new amnesty period. Specifically, if ATF determines that "a particular individual or weapon is registered" and ATF finds that its "files are missing," then "the only solution would be to declare another amnesty period (click here to read the document).

Finally, while the NFAOA "Resources" page has taken a necessarily critical view of ATF's institutional conduct, ATF should be publicly credited for having the courage to release these documents. Why ATF has chosen to release documents that will probably impeach the NFRTR in Federal District Court at some point, is unclear. That should not be a reason fail to praise the good citizenship and respect for Constitutional processes that ATF as an institution has exhibited by releasing these documents. After the FOIA distribution and appeals are complete, all of the FOIA documents will be put into PDF files and posted on the NFAOA "Resources" page.

ATF uses new form to identify "discrepancies" in the NFRTR
Because of concerns that ATF inspectors who provide Special Occupational Taxpayers (SOTs) with printouts of their NFA firearm inventory based on the NFRTR could be providing evidence that could impeach the credibility of the NFRTR in Federal District Court, ATF discontinued that practice and replaced it with one of collecting information from the SOT's inventory on a new form entitled "Firearms Inspection Worknote: NFA Inventory Discrepancies" (click here to read it). While much of the information on this form has been redacted, it is easy to conclude from what remains that the statement on it reading "PURPOSE: To reconcile discrepancies disclosed between the licensee's inventory/records [redacted]," that the purpose is to compare the SOT's records with those in the NFRTR.

The sensitivity with which ATF regards this "Firearms Inspection Worknote: NFA Inventory Discrepancies" bears some additional examination, because it demonstrates the lengths ATF is willing to go to deny a complete and reasonable response to a legitimate FOIA request, as follows. First, the initial FOIA letter dated January 24, 2007 (click here to read it) clearly states a request for the foregoing form, as well as the results of analyzing information gathered from it. Note that the FOIA requests training instructions and guidance to ATF staff on use of the form, as well as what use ATF has made of the information collected. Second, in response to ATF's initial contention that the form requested could not be located, a follow-up Administrative Appeal dated April 14, 2007 (click here to read it) identifies the "Firearms Inspection Worknote: NFA Inventory Discrepancies" and clarifies that it does not have an ATF Form number, possibly because ATF intended to try and use the lack of a form number to rebuff FOIA requests. ATF, nevertheless, provided the form. Third, in a letter dated October 2, 2007 (click here to read it), Janice Galli McLeod, Associate Director, Office of Information and Privacy, Department of Justice, stated: "After carefully considering your appeal, I am affirming ATF's action on your reqeust. ATF conducted a search for records responsive to your request and was unable to locate any records pertaining to the National Firearms Registration and Transfer Record documentation you referred to in your request. I have determined ATF's response was correct."

Associate Director McLeod's statement may be reliable and evidence that both the Department of Justice and ATF have improperly denied a legitimate FOIA request. The reason is that it is hard to conclude that documents which describe how ATF personnel are supposed to record and, presumably, follow up after encountering "discrepancies" in NFA records, particularly when the "purpose" of the form is to "reconcile discrepancies" in the NFRTR. In fact, when ATF personnel encounter a "discrepancy" in the records, they are required to assign each "discrepancy" a "control number," and forward the information to the National Firearms Act Branch. Associate Director McLeod's contention that no documents within the National Firearms Act Branch are responsive to the FOIA request is unworthy of belief.

Violating Due Process: Convictions Based on the National Firearms Registration and Transfer Record When its "Files are Missing" --- unpublished Law Review article by Joshua Prince
This article, by law student Joshua Prince, traces the NFRTR from its inception in 1934 to the present, and is the first comprehensive effort by any legal scholar to discuss the implications of errors and missing records in a legal context, and is presently being considered for publication. If the article is accepted for publication, it will most likely have to be removed from the NFAOA "Resources" page for reasons of copyright; however, in the meantime, NFAOA is making it available to readers because of the extensive scholarship it represents. The article discusses the 1968 amnesty period, and how a future amnesty period might be implemented; reviews the implications of lost/missing records such as in the Napolilli case; analyzes the decision of a Federal District Judge in Maine to repeatedly exclude the testimony of Eric M. Larson as an Expert Witness in a Possession of Unregistered Firearm case in September 2007 which the defendant was convicted (United States vs. Dario Giambro, Criminal Number 07-41-P-S, United States District Court, District of Maine); and presents a legal interpretation which would justify invalidating the NFRTR as a source of evidence in criminal prosecutions, among other things.

This article is probably far from the last word on the NFRTR, despite its comprehensiveness, because the NFRTR has yet to face an appropriate judicial review in an applicable case; and because a topic as complicated as the NFRTR will surely be explored and probably expanded by others. For example, the program overseen by U.S. military authorities during World War II that allowed some soldiers to bring or send machine guns back to the United States (under War Department Circular 155 of 28 May 1945 or War Department Circular 353 of 31 August 1944, among others) has yet to be thoroughly researched. How were those machine guns brought or sent to the United States by military authority that was apparently separate from provisions of the National Firearms Act that applied to the importation of NFA firearms? The historical record is, as yet, not clear, and needs to be cleared up. The reason is that machine guns are being encountered in the estates of deceased World War II veterans, accompanied by valid paperwork, such as a certified "capture" paper (click here to see an example).

ATF Chief Counsel Memorandum on definition of "tax return" information in NFRTR
This document may be the earliest and most definitive interpretation that ATF has rendered that classifies certain NFA documents, and/or parts of them, as being exempt from disclosure under the Freedom of Information Act (FOIA) because they contain "tax return" information as defined under Section 6103 of Title 26, United States Code.

This document -- a Memorandum to the ATF Director from the ATF Chief Counsel -- was written in response to a FOIA filed by a collector for information about firearms registered in the National Firearms Registration and Transfer Record (NFRTR). Like some documents that ATF releases, some information that ATF intended to redact was not redacted; in this case, at the bottom of page 5, ATF failed to censor out the name of the original requestor, one Mr. Smith, and the name of the entity at issue, Auto-Ordnance Corp.

This Memorandum is doubly informative, because it (1) discusses ATF rationale for withholding certain information that it deems to be "tax return" information, and (2) describes the organization of the NFRTR in a fairly comprehensive manner, enabling a better understanding how the NFRTR records are organized.

Importantly, on page 7, the Memorandum states that "tax return" information "does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer." Further, on page 9, the Memorandum observes: " . . . the courts have held that the Secretary has no discretion under 6103(c) to withhold a return from the taxpayer's designee." This determination is significant for heirs, executors, personal representatives and similar persons authorized to receive and/or distribute the assets of a deceased NFA firearm registrant's estate, as well as an attorney whom the registrant may authorize Power of Attorney on his or her behalf. It should be noted that the "Secretary" referred to the Secretary of the Treasury, but now refers to the Attorney General since ATF was transferred to the Department of Justice in 2003.

This Memorandum may be cited as: "Memorandum to Director, ATF, from ATF Chief Counsel regarding Freedom of Information Act Appeal of [redacted] dated August 18, 1980, bearing symbols CC-18,778 RMT."    

For 25 years, lost NFA registration documents plague long-time NFA dealer Saeid Shafizadeh of Pars International Corporation, Louisville, Kentucky
As a member of the NFA community since 1982, Saeid Shafizadeh is well known as the owner of Pars Internation Corporation of Louisville, Kentucky. In making publicly available this July 11, 2007, letter, (click here to read it) he wrote to NFA Branch Chief Kenneth Houchens, documenting continuing evidence, in 2007, that the NFRTR remains inaccurate and incomplete, Mr. Shafizadeh commented: "Over the past 25 years I have written many letters of that nature with no avail." What's he talking about?

Answer: In July 2007, Mr. Shafizadeh received an "Error Letter" from ATF, stating that an NFA firearm that ATF approved for delivery to Pars International Corporation and which was delivered on April 30, 2007, "was not shown registered" to Pars. As an enclosure to his July 11, 1007, letter, Mr. Shafinzandel enclosed a copy of "an approved ATF Form-3 dated April 12, 2007," further noting: "Since it appears that the transfer to Pars was pursuant to an approved ATF Form 3, I am very concerned that the National Firearms Registration and Transfer Records do not reflect the same."

When Mr. Shafinzandel says he has "written many letters" like this one during the past 25 years, without effect, it is noteworthy that he memorialized his concerns about the accuracy and completeness of the NFRTR in this affidavit (click here to read it) for a case in 1998 being handled by NFA attorney James H. Jeffries III.

Unfortunately, this issue is not addressed in the Department of Justice Inspector General's recent review of the NFRTR, published in June 2007 (click here to read it). Among other reasons, the June 2007 report is a failure because, as attorney Stephen P. Halbrook stated on page 545 of his treatise, Firearms Law Deskbook (2008 edition): " . . . if the owner or the executor of a deceased owner cannot find the registration paperwork, which may be lost or destroyed, and if the record cannot be found in the NFRTR, then a voluntary abandonment of the firearm may be induced, or even a criminal prosecution initiated. On such issues the report is not sufficiently informative." [emphasis added]

Mr. Shafizadeh distinguished himself by going to law school to become an attorney (while an NFA dealer) so he could sue ATF as needed. Long-term NFA attorney David T. Hardy, Esq., wrote up one of attorney Shafizadeh's cases in his firearms blog, Of Arms and the Law (click here to read it). The case, Baranski and Pars International Corporation vs Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco and Firearms, et al. (click here to read it), the United States Court of Appeals, 6th Circuit, ruled that ATF's search warrant was invalid, and that the ATF Special Agents involved are not entitled to qualified immunity from being sued.    

"these errors render the NFRTR questionable as a source of evidence in federal law enforcement" --- Dr. Fritz J. Scheuren, Vice President, Statistics, National Opinion Research Center, December 11, 2007
In a letter dated December 11, 2007 (click here to read it), Dr. Fritz J. Scheuren, an internationally recognized expert on statistics and administrative records, told Alan B. Mollohan, Chairman, Subcommittee on Commerce, Justice, Science and Related Agencies, Committee on Appropriations, House of Representatives, that "errors render the NFRTR questionable as a source of evidence in federal law enforcement." In his current position as Vice President, Statistics, National Opinion Research Center, University of Chicago, and a past elected President of the American Statistical Association, Dr. Scheuren's credentials are first rate and impeccable, as his resume (click here to read it) indicates.

In this 2007 letter, Dr. Scheuren reiterates and adds to a similar letter he wrote in 2000, when he first responded to a Congressional request to evaluate ATF's response to three questions asked by the Subcommittee on Treasury, Postal Service, and General Government Appropriations (click here to read the Subcommittee's questions; ATF's responses; and his May 23, 2000, letter evaluating ATF's responses). Dr. Scheuren said: "ATF has serious material weaknesses in its firearm registration system which it has yet to acknowledge," and that his reading of the 1998 audit reports on the NFRTR by the Treasury Department Inspector General (click here and here to read each report) "suggests that very serious problems were uncovered in ATF's recordkeeping systems. In fact, in my long experience, I cannot think of an instance where poorer results were obtained."

Stephen P. Halbrook, a nationally recognized expert on firearms law, similarly then advised the Subcommittee to " . . . investigate . . . further . . . [and] . . . [u]nless and until BATF can conform its records to acceptable standards of accuracy, the Subcommittee should consider legislation to prohibit use of the NFRTR database in civil and criminal proceedings." Click here to read his letter.

What errors are causing these concerns? Answer: the "critical errors" summarized in this table (click here to read it) of NFRTR errors http://www.nfaoa.org/documents/SummaryNFRTRerror1.pdf, taken from public documents and long known to the Government. ATF defines "critical errors" as those which impact the mission of ATF, such as incorrect firearm serial numbers. In fact, all of these "critical errors," and "critical error" rates, were defined and reported by the Government.

Dr. Scheuren is in some ways an unlikely spokesman for the firearms community, because he isn't. In fact, Dr. Scheuren (1) owns no firearms, (2) is not involved in gun control one way or the other, (3) is distinguished by pro bono work on international human rights, (4) takes action to uphold professional standards within the statistical profession; and (5) is that rare combination of public servant who is informed by executive experience with federal statistical agencies, and equally respected in the private sector. His resume (click here to read it; it's worth reading again) shows that he's as good as they come.    

Summary of Errors in the NFRTR disclosed in audits or reviews by ATF or the Treasury Department Inspector General, 1994 to 1998
Information about errors in the NFRTR in official Government documents is not easy to locate, and this table (click here to read it) summarizes them in context, as well as identifies their locations in the public record. While this information is publicly available, it made no difference in a recent court case in which the accuracy and completeness of the NFRTR may have been relevant.

On September 25, 2007, Dario Giambro of Auburn, Maine, was convicted of the felony charge of Possession of Unregistered Firearm, a Model 1908 Marble's Game Getter Gun. The case is United States vs. Dario Giambro, Criminal Number 07-41-P-S, United States District Court, District of Maine. Before trial, on August 17, 2007, Chief United States District Judge George Z. Singal denied motions in limine to allow testimony by Eric M. Larson as an Expert Witness on the NFRTR, and in seeking to have the NFRTR declared insufficiently reliable for purposes of criminal prosecution (click here to read the motions). Judge Singal determined that Mr. Larson's statements "largely contain conjecture, speculation, and lack any scientific basis" (click here to read Judge Singal's order), referring to July 18, 2007, Declaration by Mr. Larson (click here to read it).

In his order, Judge Singal also cited United States vs. Rith (164 F.3d 1323, 10th Cir. 1999) as the most reliable evidence of the reliability of the NFRTR (click here to read the Rith case), which cites a 1996 audit of the NFRTR by the Audit Services Division, Department of the Treasury, that reported a "critical-error" rate of "no more than 1.5%," and rejected what he termed "outdated" records. In fact, the NFRTR was partially audited by the Treasury Department Inspector General in 1998, and published audit results indicate "critical error" rates of 4.3% for Form 4467, 8.4% for "Letter" and 7.9% for "Other" NFRTR records. Importantly, unpublished Work Papers from the 1998 audit disclose that Treasury IG auditors initially found an 18.4% "critical error" rate for Form 4467; the results for "Letter" and "Other" categories were redacted completely. In response to these initial audit findings, ATF changed the definition of "critical error," as the error summary table shows, to lower the "critical error" rate to that reported in the published report. The same sample of NFRTR data was analyzed for both sets of results. The difference was how "critical error" was defined; that is, analyze the Form 4467 data one way, the results are an 18.4% critical error rate; analyze it using a different definition for critical error, and the critical error rate drops to 4.3%. Indeed, the reaction of NFA Branch staff during "a review and discussion of database error analysis" by Treasury Department IG auditors, held June 17, 1998, was that "the results obtained by the OIG audit were disappointing at best and could have serious consequences for the ATF firearms registry mission."
   

In 1999, ATF states that NFRTR data submitted to Treasury IG for its audit "was not accurate" [emphasis in original]
Because of his interest in determining whether procedures ATF said it implemented to render the NFRTR accurate and complete had done so, Eric M. Larson filed a Freedom of Information Act (FOIA) request for ATF to send "Annual Registration Activity" data for 1998, which was comparable to data he had analyzed from 1992 to 1996 as the basis for his complaint to the Honorable Dan Burton, then Chairman of the House Committee on Government Reform and Oversight (click here to read a copy of the letter Chairman Burton sent to the Treasury IG, and related documents). In response to Mr. Larson's FOIA, Averill Graham, provided the requested information, and stated: "The report you refer to was indeed submitted to the Inspector General of Treasury, with the understanding that the report was not accurate, because some of the report functions associated with the database are not working properly." Ms. Graham enclosed a copy of the report, and reiterated: "This report is not accurate." This letter may be cited as "Letter to Eric M. Larson from Averill P. Graham, Disclosure Specialist, Bureau of Alcohol, Tobacco and Firearms, dated May 18, 1999, bearing symbols 112000 99-1420."
   
In 1998, ATF approves "registrations for firearms that do not appear in the NFRTR"
Concerned about the fact that ATF had transferred NFA firearms from his inventory for which he had not submitted transfer applications, among other problems, Robert I. Landies of Ohio Ordnance Works, Chardon, Ohio, complained to ATF about it. In a letter dated May 26, 1998, Assistant Director Jimmy Wooten responded, in part, by requesting Mr. Landies to "provide us with a list of any discrepancies of which you are currently aware." Among these, Mr. Wooten acknowledged, were "receipt of approved registrations for firearms which do not appear in the NFRTR." This letter may be cited as: "Letter to Robert I. Landies, Ohio Ordnance Works, Chardon, Ohio, from Jimmy Wooten, Assistant Director, Firearms, Explosives & Arson, Bureau of Alcohol, Tobacco and Firearms, dated May 26, 1998, bearing symbols F:SD:NFA:WJO 179.101 98-5593."
   
In 1983, then-Senator Robert Dole proposed amending the NFA to established a "continuous" amnesty period
Robert E. Powis, Deputy Assistant Secretary of Enforcement in the Treasury Department responds to inquiries from Senator Dole in 1983 on S. 914, "A bill to protect firearms owners' constitutional rights, civil liberties, and rights to privacy." Senator Dole proposed allowing hold-harmless registration of unregistered NFA firearms or devices, as well as lifting the veil of secrecy regarding registration information. The language in the amendment is useful as discussions and debates about an amnesty period arise. Mr. Powis also stated that the 30-day amnesty period in 1968 had served its purpose, and thus unregistered NFA firearms could no longer be registered, contradicting the fact that ATF had registered thousands of NFA firearms after the 1968 amnesty period expired, as established in 1998 audits of the NFRTR by the Treasury Department Inspector General, and further documented by Eric M. Larson in his 2001 Congressional statement. These 1982 hearings may be cited as "The Federal Firearms Owner Protection Act." Hearing Before the Committee on the Judiciary, United States Senate, 98th Congress, 1st Session, on S. 914, October 4, 1984. Serial No. J-98-70. Washington, D.C.: U.S. Government Printing Office, 1984. For ATF's legal analysis of NFA documents containing "tax return" information, and the scope of information that may be released as well as withheld, click here. This document may be cited as "Memorandum from Marvin J. Dessler, Chief Counsel, to the ATF Director dated August 18, 1980, bearing symbols CC-28,778 RMT and numbered 22889."
ATF admits in writing that it lost all records of a registered NFA firearm
In a letter dated September 18, 1992, then-NFA Branch Chief Wayne Miller advised attorney James H. Jeffries, III that until his client, Noel Napolilli, produced a Form 3, "ATF had no record of registration of the MP40 machinegun to Mr. Napolilli or any other person." This letter may be cited as "Letter from Wayne Miller, Chief, NFA Branch, to James H. Jeffries, III dated September 18, 1992."

This ATF letter is significant because it meets a standard set by the Department of Justice in 1979 that "a particular individual or weapon is registered" and ATF finds that its "files are missing," then "the only solution would be to declare another amnesty period" (see "Response to Senator [James A.] McClure," by Philip B. Heymann, Assistant Attorney General, and Lawrence Lippe, Chief, General Litigation & Legal Advice Section, Criminal Division, U.S. Department of Justice, November 29, 1979, LL:JJD:ajw, page 4); click here to read this document. Interestingly, a June 2007 report by the Department of Justice Office of Inspector General found that firearm registration documents missing from the NFRTR is apparently generalized and a routine event: "If the NFA weapons owner [sic] can produce the registration paperwork, ATF assumes the error is in the NFRTR and fixes it in the database" (DOJ-OIG Report Number I-2007-006, page 31); click here to read this document. Thus, it appears only to be a matter of time before the Attorney General will authorize a new amnesty period to render the NFRTR accurate and complete.

The background of this case is that during a routine compliance inspection, ATF encountered several NFA firearms owned by Noel Napolilli of Fairbanks, Alaska, that ATF alleged were not registered in the NFRTR. ATF eventually determined that all of the firearms were registered except for an MP-40 machine gun bearing serial number 4212; and although Mr. Napolilli had a copy of an approved Form 3 for the firearm issued by ATF, ATF claimed the document was a forgery because there was no computerized or hard copy record of the MP-40 in the NFRTR. ATF was later forced to withdraw that allegation after ATF's own forensic document laboratory determined that the Form 3 issued to Mr. Napolilli was a copy of a Form 3 that ATF created. ATF then changed tactics and alleged that the firearm was contraband because it bore the name of an Ohio manufacturer and no evidence the gun had been remanufactured although (as attorney James Jeffries pointed out), ATF had itself lost or destroyed the very documentation that could have unambiguously settled the issue. Mr. Jeffries wrote an article entitled "Owners of 'Remanufactured' Guns Beware!" (click here to read it), summarizing the legal issues from his perspective as Mr. Napolilli's attorney.

Mr. Napolilli's account of what happened has been published in Congressional hearing records, in the statements of Eric M. Larson, posted elsewhere on this site and linked here for convenience of reference. In a letter dated February 19, 1998, Mr. Napolilli contacted Rep. Jim Kolbe, then Chairman of the Subcommittee on Appropriations, House of Representatives to inform him of his experience and included a copy of his Declaration filed in United States District Court for the District of Alaska at Fairbanks (see 1998 statement, pages 33-39); click here to read these documents. Mr. Napolilli further submitted a Declaration describing how ATF initially claimed his Form 3 was a forgery, but was forced to retract that allegation when ATF's own forensic document laboratory examined the Form 3 and determined it was genuine (see 1999 statement, pages 82-84; a copy of the ATF laboratory report is on page 87); click here to read these documents. Finally, on November 19, 1999, ATF executives Walfred Nelson, Kent M. Cousins, Gary Schaible and representatives from ATF's offices of Legislative Affairs and Chief Counsel, told Jeff Ashford, Staff Assistant, Subcommittee on Treasury, Postal Service, and General Government Appropriations, and a staff member of the Committee on Government Reform, House of Representatives, that ATF had lost all of its documentary and computer files for Mr. Napolilli's MP-40 (see 2001 statement, page 13; click here to read it).
   

ATF Inspector George Semonick testifies November 8, 2005, about condition of NFRTR
During ATF compliance inspections of licensed manufacturers of and dealers in NFA firearms and devices, it is often the case that the ATF's firearms records in the National Firearms Registration and Transfer Record (NFRTR) are inaccurate, while those of the manufacturer or dealer are accurate. In the case United States vs Wrenn (Cr. No. 1:04-045), District of South Carolina, Aiken Division, ATF Inspector George Semonick testified under oath that "there was a discrepancy" between firearms records maintained by defendant Wrenn and those maintained in the NFRTR by ATF. Inspector Semonick also confirmed "that the records, the records kept by ATF, were deficient." Defendant Wrenn was not charged with any record-keeping violations.
   
Transcript of remarks of NFA Branch Chief Thomas B. Busey, October 18, 1995, broadcast throughout ATF Headquarters
A transcription of the Busey videotape has been made under the title "ROLL CALL TRAINING, 10-95, TOM BUSEY," and is available from ATF under the Freedom of Information Act. Note that Mr. Busey is not, as ATF has stated in the past, speaking "off the cuff" or casually. In fact, Mr. Busey prepared his remarks in advance, can be seen reading from them in the videotape, using prepared charts, and intended to say everything he said. This transcript was published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1999. 105th Congress, 2nd Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1998, pages 173-194.
   
Roll Call Video (Highlights)
ATF/NFRTR Roll Call Training Video, October 1995, referenced in Firearms Law Deskbook excerpt, also on this site. ATF admits to perjury about the accuracy of the NFRTR database. High quality version available on request (218MB).
   
Roll Call Video (low res)
ATF/NFRTR Roll Call Training Video, October 1995, referenced in Firearms Law Deskbook excerpt, also on this site. ATF admits to perjury about the accuracy of the NFRTR database. High quality version full-length available on request (218MB).
   
In 1998 ATF denied a FOIA request for a copy of the video, because " . . . release of this video tape would constitute an invasion of Mr. Busey's privacy."
Enough said. This document may be cited as "Letter from Marilyn R. LaBrie, Disclosure Specialist, ATF, to Eric M. Larson dated March 18, 1998, bearing symbols L:D:MRL 98-514," and is published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1999, 105th Congress, 2nd Session. Washington, D.C.: U.S. Government Printing Office, 1998, page 170.
   
Corrections by Gary N. Schaible of remarks by NFA Branch Chief Thomas Busey during "Roll Call Training"
In early 1996, ATF Specialist Gary N. Schaible attested, in a sworn affidavit, that NFA Branch Chief Thomas B. Busey made misstatements about the integrity of the National Firearms Registration and Transfer Record (NFRTR) during "Roll Call" training at ATF Headquarters in October 1995. This affidavit is entitled "Corrections by Gary N. Schaible Concerning Transcript of Roll Call Training by Tom Busey, Chief, National Firearms Act Branch, October 18, 1995, under Penalty of Perjury, Executed on February 13, 1995." This affidavit is published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1997. 104th Congress, 2nd Session. PART 5: TESTIMONY OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1996, pages 182-183.
   
Legal analysis of the Busey presentation by James H. Jeffries III, Esq.
The first and best legal analysis of Thomas Busey's remarks about the NFRTR, is by an attorney who learned of the tape's existence and then quickly filed a Freedom of Information Act request to keep the tape from being destroyed. The article, "Institutional Perjury," by James H. Jeffries III, was published in Voice for the Defense, Vol. 25, No. 8, October 1996, pages 28-30, and later in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1999. 105th Congress, 2nd Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1998, pages 40-42. His contact information is: James H. Jeffries III, Esq, 3019 Lake Forest Drive, Greensboro, North Carolina 27408; telephone (336) 282-6024; FAX (336) 288-0407; e-mail: slr1918a3@aol.com

To read a copy of "Institutional Perjury" published in the Congressional Record (Extensions of Remarks), Vol. 142, August 2, 1996, pages E1461-E1462, click here.
   

1998 Congressional statement regarding illegal felony convictions based on a coverup of ATF losing or destroying NFA paperwork
In the first legal case where the Busey tape was used to reverse felony convictions for nonregistration of firearms in the NFRTR, Federal District Judge John A. MacKenzie stated: " . . . the question of whether or not Mr. Busey's information was correct or not should have been furnished to the defendant's counsel, and its not being furnished seems to me to have violated a precept under which we proceed." In his "Statement on Efforts by the Bureau of Alcohol, Tobacco and Firearms to Cover Up Errors in the National Firearms Registration and Transfer Record and to Illegally Withhold Exculpatory Evidence in Criminal Prosecutions," defendant John D. LeaSure and his attorney, David N. Montague, Esq., describe the process of the subsequent reversal of these illegal convictions. These materials are published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1999. 105th Congress, 2nd Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1998, pages 146-172.
   
ATF Specialist Gary N. Schaible gives contradictory sworn testimony, in Federal District Court in 1996 and to ATF Special Agent Jeff Groh in 1997 during an internal ATF investigation, about the destruction of NFA documents by persons working at or for ATF
In a 1996 federal court case, United States vs. John Daniel LeaSure (click here) ATF Specialist Gary N. Schaible testified under oath that NFA branch clerks could have destroyed documents that Mr. LeaSure FAXed to the NFA Branch in February 1994. But Mr. Shaible told a completely different story during a 1997 investigation by ATF's office of internal investigations. Specifically, Mr. Schaible testified (also under oath) that the event he was thinking about when he testified in 1996 really happened in 1988, when contract employees working at ATF were suspected of destroying NFA documents because they didn't feel like working on them. At minimum, Mr. Schaible's sworn 1996 testimony appears to be mistaken. But what really happened? In this excerpt from "Work Papers on Errors in the National Firearms Registration and Transfer Record, and Other Issues Regarding the Bureau of Alcohol, Tobacco and Firearms" (the full document is posted on "Resources" as "1998 Treasury OIG critique"), author Eric M. Larson compares and analyzes Mr. Schaible's contradictory sworn testimonies.
   
In a 1996 Bench Trial, a Federal District Judge dismissed 5 convictions for nonregistration of firearms in the NFRTR, based on ATF withholding evidence that NFA Branch Clerks could have thrown the defendant's documents away
This transcript of the first case in which convictions for nonregistration of firearms in the NFRTR were dismissed by a Federal District Judge based on the Busey Videotape includes testimony by ATF Specialist Gary N. Schaible, who answered "Yes" to defense attorney David N. Montague's question "Do you have -- have you had occasions that you're aware of in the NFA branch of clerks throwing away transmissions because they don't want to fool with them?" The legal citation for this case is United States vs. John Daniel LeaSure (click here) , Crim. No. 4:95cr54, E.D. Va.--Newport News Div., Transcript of Proceeding before the Honorable John A. MacKenzie (May 21, 1996). This case is not listed in the West system because it is a Bench Trial; had ATF appealed this case and lost, it would have become case law (ATF declined to appeal). This transcript was published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1999. 105th Congress, 2nd Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1998, pages 195-276.
   
In a sworn 1998 affidavit, attorney James Jeffries III provides additional legal analysis of United States vs. John Daniel LeaSure (1996)
BATF negligence in losing or destroying John D. LeaSure's NFA paperwork resulted in a fraudulently procured search warrant, which "resulted in the warrantless plain view seizure of the only evidence supporting the surviving count" against Mr. LeaSure after Federal District Judge John A. MacKenzie dismissed the convictions for possession of unregistered NFA firearms. "The fundamental flaw in the [ATF Specialist Gary N.] Shaible 'correction' to the Busey statement is the silent deception inherent in BATF's consistent approach to the NFR&TR error problem," Mr. Jeffries states. "No doubt it is true that alternative search techniques will disclose registered firearms in the registry somewhere, even if a name is misspelled or a serial number is transposed. That is not the issue, and never has been. Where the evil occurs, as it did in this case, is that no search technique will locate a registration which has been removed, destroyed, or through BATF negligence or misconduct never found its way into the registry. No one can hear the dog which does not bark." This document may be cited as "Declaration of James H. Jeffries III, dated September 11, 1998.
   
In 2001, attorneys James O. Bardwell and David T. Hardy, and Members of the New Hampshire House of Representatives, expressed concerns to the Congress about the NFRTR situation
Selected letters from an unpublished "Testimonial Letter Appendix" to accompanying Eric M. Larson's 2001 statement to the Congress further articulate specific concerns about the accuracy and completeness of the NFRTR, and related issues. James O. Bardwell, Esq. needs no introduction to the Class III community; his long-standing NFA Web Site, an obvious labor of love for the hobby, is still used extensively by citizens and the government alike, always without any fee. Attorney Bardwell states: "I do not understand how ATF employees can regularly offer sworn statements in court that a given person does not have a firearm registered to him when their records are so poorly kept, and so poorly indexed." David T. Hardy, Esq., is a long-time NFA attorney, and worked "in law enforcement matters as a government employee for the U.S. Bureau of the Interior." Attorney Hardy, citing various unpublished Treasury Department Inspector General audit Work Papers, points out an ATF Special Agent's statement that " . . . much of the [Form 4467] documentation prior to 1972 may have been destroyed . . . " (emphasis in original), and recommended "that criminal investigative procedures be used to determine the accuracy and completeness of the data base, as well as to determine whether any effort has been successfully made to add records of Form 4467 registrations back into the NFRTR, as the result of ATF being confronted with those forms by lawful owners of NFA firearms." Similar concerns motivated 22 Members of the New Hampshire House of Representatives to ask the Subcommittee to encourage ATF to "provide a written plan, with priorities and timetables, stating exactly how [various NFRTR errors] will be corrected," and "to allow law-abiding owners of NFA firearms the opportunity to re-register them so as to remove any 'contraband' status that has resulted from ATF employees not following the law or procedures in the conduct of their official duties." A complete copy of this Testimonial Letter Appendix is on record in the permanent files of the Subcommittee on Treasury, Postal Service and General Government and its successors.
   
In 1992, ATF seized and ultimately destroyed an MP-40 for which no record could be found in the NFRTR, although the owner, Noel Napolilli, had a valid Form 3 approved by ATF.
This unusual case arises from two issues---ATF's loss of all its NFRTR records of a registered NFA firearm, and ATF's later interpretation that the firearm was contraband. Both issues were beyond control of the owner, to whom ATF had approved a valid Form 3 transfer. The NFRTR issue is straightforward, as ATF states: " . . . ATF had no record of registration of the MP40 machinegun to Mr. Napolilli or any other person." The larger issue arises from an apparently informal practice, during the early 1980s, of getting unregistered machineguns off the street by some ATF Special Agents instructing Class II manufacturers to "manufacture" them and file Forms 2 to register them. This little-discussed but widely known practice within the Class III industry may involve as many as 20,000 machine guns currently owned by people who have no way of knowing that these firearms are contraband, or any means of rendering them legal to possess. Mr. Napolilli's letter to the Congress and copy of Noel E. Napolilli vs. United States of America (U.S.D.C., D. Alaska, Case No. Civ. F93-37), are published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1999. 105th Congress, 2nd Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1998, pages 33-39; the "Declaration of Noel E. Napolilli" and ATF's "Laboratory Report" dated March 2, 1993, is published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 2000. 106th Congress, 1st Session. PART 5: MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1999, pages 82-87. ATF's April 11, 2005, letter to Mr. Napolilli, and its letter dated September 18, 1992, to attorney James H. Jeffries III, are unpublished. To read James H. Jeffries' article, "Owners of 'Remanufactured' Guns Beware," click here.
   
United States vs. Wilson (Ancillary Civil Action H-97-83), Criminal Case H-82-139, October 27, 2003
Edwin Paul Wilson carried out covert actions on behalf of the Central Intelligence Agency (CIA) for many years, which the CIA and the Government repeatedly denied, and Mr. Wilson was consequently convicted of serious felonies arising from these activities and sentenced to lengthy federal imprisonment. In this unusual case, whose appeals played out during some 20 years, United States District Lynn N. Hughes vacated all of Mr. Wilson's convictions "Because the Government knowingly used false evidence against him and suppressed favorable evidence." Judge Hughes notes at the outset that "This opinion refers only to the part of the record that the government has reluctantly agreed be made public. It does not attempt to recount even that limited range of data in its entirety; the government deceit mentioned here is illustrative--not exhaustive."
   
United States vs. John Daniel LeaSure, transcript of sentencing hearing, April 14, 1998
The LeaSure case ended with ATF insisting that Mr. LeaSure be sentenced to 48 months in federal prison rather than the 1 year sentence imposed by Federal District Judge John A. MacKenzie. The reason, ATF contended, is that Judge MacKenzie (by this time retired) had not fully explained the reason for departing downward in his sentence of Mr. LeaSure. A new Judge, Raymond A. Jackson, determined that Judge MacKenzie had not fully explained the reason for a reduced sentence, and so re-sentenced Mr. LeaSure to 45 months in prison, a $3,400 fine, and 3 years of supervised probation. What's interesting in this case beyond the fact that apparently neither the defense nor the prosecution sought to obtain an affidavit from Judge MacKenzie (which seems like a logical thing to do), is the continued interplay between Mr. LeaSure's attorney and the Assistant United States Attorney regarding the withholding of exculpatory evidence in this case by the Government. A careful reading of the entire LeaSure case suggests that Mr. LeaSure got an unusually raw deal from ATF and from the Government, for reasons that may never be satisfactorily explained in public. This case may be cited as United States vs. John Daniel LeaSure, Crim. No. 4:95cr54, E.D. Va.--Newport News Div., Transcript of Proceeding before the Honorable Raymond A. Jackson (April 14, 1998). For those who may think the Government (in particular, the Central Intelligence Agency) necessarily takes care of its own, see United States vs. Wilson, also posted in this section.
   
1998 Treasury OIG critique
In this unpublished document prepared for Rep. Pete Sessions, author Eric M. Larson uses Tom Busey's remarks about the NFRTR as the starting point for what became the basis for his Congressional testimonies and statements about the NFRTR being inaccurate and incomplete. The evidence Mr. Larson uses includes NFRTR transaction data, statements by other ATF personnel about the kinds of errors in the NFRTR, and the empirical basis, methods, and theoretical assumptions used in his evaluation and analysis. Therefore, anyone is free to replicate his findings, as well as to perform different analyses involving other data and assumptions. In 1997, ATF stopped providing the types of NFRTR transaction statistics that Mr. Larson used as an evidentiary basis for criticizing ATF's administration of the NFA and management of the NFRTR. Note that this 1999 analysis was completed before the Treasury OIG audit work papers were available. This critique should be referenced as "Work Papers on Errors in the National Firearms Registration and Transfer Record, and Other Issues Regarding the Bureau of Alcohol, Tobacco and Firearms," by Eric M. Larson. Prepared for The Honorable Pete Sessions, House of Representatives, Washington, D.C., April 2, 1999 (unpublished). Also note that virtually all of the evidence Mr. Larson uses came from ATF itself; that is, the data and/or documents he cites were created by ATF. These include documents published by the Government, as well as obtained by the Freedom of Information Act (FOIA) process. NOTE: This document is also included in the section containing Mr. Larson's published Congressional testimonies and statements.
   
 ATF and Treasury Department Inspector General investigations and audits of the NFRTR, and related documents
"these errors render the NFRTR questionable as a source of evidence in federal law enforcement" --- Dr. Fritz J. Scheuren, Vice President, Statistics, National Opinion Research Center, December 11, 2007
In a letter dated December 11, 2007 (click here to read it), Dr. Fritz J. Scheuren, an internationally recognized expert on statistics and administrative records, told Alan B. Mollohan, Chairman, Subcommittee on Commerce, Justice, Science and Related Agencies, Committee on Appropriations, House of Representatives, that "errors render the NFRTR questionable as a source of evidence in federal law enforcement." In his current position as Vice President, Statistics, National Opinion Research Center, University of Chicago, and a past elected President of the American Statistical Association, Dr. Scheuren's credentials are first rate and impeccable, as his resume (click here to read it) indicates.

In this 2007 letter, Dr. Scheuren reiterates and adds to a similar letter he wrote in 2000, when he first responded to a Congressional request to evaluate ATF's response to three questions asked by the Subcommittee on Treasury, Postal Service, and General Government Appropriations (click here to read the Subcommittee's questions; ATF's responses; and his May 23, 2000, letter evaluating ATF's responses). Dr. Scheuren said: "ATF has serious material weaknesses in its firearm registration system which it has yet to acknowledge," and that his reading of the 1998 audit reports on the NFRTR by the Treasury Department Inspector General (click here and here to read each report) "suggests that very serious problems were uncovered in ATF's recordkeeping systems. In fact, in my long experience, I cannot think of an instance where poorer results were obtained."

Stephen P. Halbrook, a nationally recognized expert on firearms law, similarly then advised the Subcommittee to " . . . investigate . . . further . . . [and] . . . [u]nless and until BATF can conform its records to acceptable standards of accuracy, the Subcommittee should consider legislation to prohibit use of the NFRTR database in civil and criminal proceedings." Click here to read his letter.

What errors are causing these concerns? Answer: the "critical errors" summarized in this table (click here to read it) of NFRTR errors http://www.nfaoa.org/documents/SummaryNFRTRerror1.pdf, taken from public documents and long known to the Government. ATF defines "critical errors" as those which impact the mission of ATF, such as incorrect firearm serial numbers. In fact, all of these "critical errors," and "critical error" rates, were defined and reported by the Government.

Dr. Scheuren is in some ways an unlikely spokesman for the firearms community, because he isn't. In fact, Dr. Scheuren (1) owns no firearms, (2) is not involved in gun control one way or the other, (3) is distinguished by pro bono work on international human rights, (4) takes action to uphold professional standards within the statistical profession; and (5) is that rare combination of public servant who is informed by executive experience with federal statistical agencies, and equally respected in the private sector. His resume (click here to read it; it's worth reading again) shows that he's as good as they come.    

Unpublished audit Work Papers from 1998 Treasury Department Inspector General reports on the NFRTR
These documents are limited to selected audit Work Papers from the Treasury Department Inspector General's 1998 audits of the NFRTR, termed by the IG Review of BATF's Firearm Registration Procedures, and Audit Project Number A-CH-98-001, do not include (1) documents generated by ATF as part of these audits, or (2) some Work Papers that were not requested in the FOIA, such as those for the LeaSure case. Because different FOIA requestors requested different Work Papers, there are several different versions of this document set floating around. As these other versions become available, they will be posted here, in separate sections, to preserve the integrity of the results of each individual FOIA request. Because these Work Papers have already been processed, they are available to other requestors at nominal cost, typically the cost of making photocopies, with the first 2 hours of search time free. Readers who wish to have the most complete copy of these unpublished Work Papers would be advised to request them, via FOIA, from the Honorable Rich Delmar, Counsel to the Inspector General, Department of the Treasury, 740 15th Street, N.W., Suite 510, Washington, D.C. 20220, telephone (202) 927-3973 -- direct; (202) 528-8997 -- cell; (202) 927-6492 -- fax; e-mail: delmarr@oig.treas.gov.

To preserve the original indexing of the Work Papers, they have been reproduced here according to the same order and titles provided by the Treasury Department Inspector General; that is, in Bundles A through P. A copy of the index has been provided with each scanned Workpaper Bundle; in some cases, because of redactions, there are few or no documents some Workpaper Bundles. For example, Work Paper Bundle L ("Judgmental Sample - Forms 4467 (OIG Legal Counsel Request)) has been completely redacted; the ATF attorneys want no insight into whatever information or documents they requested and, presumably, received.

Readers who are Certified Public Accountants (CPAs) or have other relevant professional backgrounds, will note that the Work Papers are prepared according to requirements of Generally Accepted Government Auditing Standards (GAGAS) in effect at the time of this audit work. More specifically, those standards are published in Government Auditing Standards, by the Comptroller General of the United States. 1994 Revision. Washington, D.C.: U.S. Govenrment Printing Office, 1994. Some discussion of the application of GAGAS to the Treasury IG audit appears in "Work Papers on Errors in the National Firearms Registration and Transfer Record, and Other Issues Regarding the Bureau of Alcohol, Tobacco and Firearms," by Eric M. Larson, unpublished critique prepared for the Honorable Pete Sessions, House of Representatives, Washington, D.C., April 2, 1999 (click here to read it), well before these unpublished Work Papers were available. While this critique is available elsewhere on the Resources page, a link to it is included here for convenience.

Study of these unpublished Work Papers yield important facts that raise questions about the accuracy and completeness of the NFRTR, and statements such as those by ATF Director John W. Magaw in a November 19, 1999, letter "that the NFRTR continues to be an accurate and reliable database of firearms transactions" (click here to read it). Consider, for example, Work Paper F-22, dated January 21, 1998. This is an account of an ATF meeting with the Treasury IG auditors to define such things as a "critical error" and how many of them exist in the NFRTR; on the 2nd page of Work Paper F-22, ATF defines the term "Critical Error" as well as what kind of "Critical Error" rate is acceptable. In Work Paper F-25, dated February 29, 1998, Treasury IG auditor Carol Burgan states that "error definitions for critical data fields suring sampling" include weapon serial number and registrant's last name (each must "be 100% correct"), and "weapon description." Now, look at Work Paper F-37, dated June 17, 1998, an account of a meeting between ATF executives and Treasury IG auditors about the audit findings that resulted from the criteria ATF told the Treasury IG auditors to use during its audit work; specifically, the definitions of "critical error" in the sampling of Forms 4467. Note that the audit findings were characterized by ATF as "disappointing at best" and bad enough to "have serious consequences for the ATF firearms registry mission." A discussion then ensues about the advisability of changing the definition of what a "critical error" is in order to reduce the "critical error" rate. Gary Wilk, the Treasury IG auditor, wryly concluded at the end of Work Paper F-37 that "The NFA Branch representatives appeared to obtain an improved appreciation of the specific requirements that produced the outcomes of the audit." The concerns of ATF staff about the "critical error" rate discussed at the June 17, 1998, resulted from an analysis of a Discovery Sample of 70 Forms 4467 (a random sample) in which "our Discover sample indicated a 18.4 percent error rate, one error per error Form 4467 in a 'Critical' field" (see Work Paper H-1 + Attachments H1-H143, April 6, 1998, by Gary Wilk; page 3 of this same Work Paper states that "Critical errors are those errors that interfere with the effective and efficient implementation" of the "NFA Branch mission."

What about missing NFA paperwork? Work Paper C-18 identifies an "Assistant Special Agent in Charge, Baltimore Field [name redacted] (formerly of the Office of Inspection)", who "was asked if reviewed or tried to find out any information on ATF's allowance of gun registrations on Form 4467 (after the amnesty period ended). [name redacted]indicated that [redacted] was aware that additional registrations had taken place after the amnesty period ended, however [name redacted] believed there would not be any documentation by the agency allowing this. When [name redacted] first started with the agency in 1971, it was will under IRS. When ATF was made a separate Bureau in 1971, it was not an amicable split from IRS. He believes much of the documentation prior to 1972 may have been destroyed or maintained by IRS."

ATF apparently never satisfied the Treasury IG as to the accuracy and completeness of the NFRTR. Time and time again, ATF would respond to requests by Treasury IG auditor Gary Wilk for valid documentation to support the computerized data entries in the NFRTR. Very, very late in the audit, as evidenced by Work Paper F-52, prepared by Gary Wilk on November 30, 1998, and signed off by Audit Manager Robert K. Bronstrup, on December 18, 1998 ( the date the second audit report was published), to try and resolve "discrepancies observed during this audit," the "conclusion" of Auditor Wilk is as follows: "Examination of the ATF [sic] of the photo copied records did not permit this auditor to fully determine whether the discrepancies continued to exist within the computerized NFRTR database. The materials did not clearly demonstrate that the computer system, typically in use, provides reliable and valid data when a search is performed. ATF did demonstrate that they have the capacity to generate various information from various sources but the original documentation remains missing and the accuracy of the documentation provided cannot be assured." As one inspects the Work Paper bundles and looks at the same NFRTR records examined by Auditor Wilk, the numerous entries of "MISSING" or "DOCUMENTATION MISSING" or "DOCUMENT MISSING" is troubling. The reason is that no search, however diligent, will locate a record that has been removed or destroyed. Indeed, Auditor Wilk, confronted with a significant amount of missing original documentation, was unable to verify the accuracy of the computerized NFRTR database, as he stated.

Workpaper
Bundle
Title
Bundle A Administrative (click here to read).
Bundle B Reports (click here to read).
Bundle C General Information / Internal Controls (click here to read).
Bundle D Allegations - Background (click here to read).
Bundle E Objective 1 - 5 Allegations (click here to read).
Bundle F Objective 2 Statistical Sample of Database (click here to read).
Bundle G Objective 3 Consistency of Removals (click here to read).
Bundle H Samples - Forms 4467, Computer Records to Original Documentation, Original Documentation to Computer Records (click here to read).
Bundle I Samples - Letter and Other Post 1985 - Original Documentation to Computer Records (click here to read).
Bundle J Samples - Letter and Other All Dates - Computer Records to Original Documentation (click here to read).
Bundle K Samples - Letter and Other Pre-1986 Original Documentation to Computer Records (click here to read).
Bundle L Judgmental Sample - Forms 4467 (OIG Legal Counsel Request) (click here to read).
Bundle M Reconciliation of Missing Documentation - ATF Records Search Results (Document pending).
M-1 of 2 Miscellaneous Support (click here to read).
M-2 of 2 Miscellaneous Support (click here to read).
Bundle N Miscellaneous Support & ATF Microfiche (click here to read).
Bundle O Precision Arms International - LeaSure Prosecution (Document pending).
Bundle P Miscellaneous Support & Montague Letter Regarding ATF Busey Video Tape (Document pending).
P - Appendix 1 ATF Busey Video Tape (click here to view).

   
Summary of Errors in the NFRTR disclosed in audits or reviews by ATF or the Treasury Department Inspector General, 1994 to 1998
Information about errors in the NFRTR in official Government documents is not easy to locate, and this table (click here to read it) summarizes them in context, as well as identifies their locations in the public record. While this information is publicly available, it made no difference in a recent court case in which the accuracy and completeness of the NFRTR may have been relevant.

On September 25, 2007, Dario Giambro of Auburn, Maine, was convicted of the felony charge of Possession of Unregistered Firearm, a Model 1908 Marble's Game Getter Gun. The case is United States vs. Dario Giambro, Criminal Number 07-41-P-S, United States District Court, District of Maine. Before trial, on August 17, 2007, Chief United States District Judge George Z. Singal denied motions in limine to allow testimony by Eric M. Larson as an Expert Witness on the NFRTR, and in seeking to have the NFRTR declared insufficiently reliable for purposes of criminal prosecution (click here to read the motions). Judge Singal determined that Mr. Larson's statements "largely contain conjecture, speculation, and lack any scientific basis" (click here to read Judge Singal's order), referring to July 18, 2007, Declaration by Mr. Larson (click here to read it).

In his order, Judge Singal also cited United States vs. Rith (164 F.3d 1323, 10th Cir. 1999) as the most reliable evidence of the reliability of the NFRTR (click here to read the Rith case), which cites a 1996 audit of the NFRTR by the Audit Services Division, Department of the Treasury, that reported a "critical-error" rate of "no more than 1.5%," and rejected what he termed "outdated" records. In fact, the NFRTR was partially audited by the Treasury Department Inspector General in 1998, and published audit results indicate "critical error" rates of 4.3% for Form 4467, 8.4% for "Letter" and 7.9% for "Other" NFRTR records. Importantly, unpublished Work Papers from the 1998 audit disclose that Treasury IG auditors initially found an 18.4% "critical error" rate for Form 4467; the results for "Letter" and "Other" categories were redacted completely. In response to these initial audit findings, ATF changed the definition of "critical error," as the error summary table shows, to lower the "critical error" rate to that reported in the published report. The same sample of NFRTR data was analyzed for both sets of results. The difference was how "critical error" was defined; that is, analyze the Form 4467 data one way, the results are an 18.4% critical error rate; analyze it using a different definition for critical error, and the critical error rate drops to 4.3%. Indeed, the reaction of NFA Branch staff during "a review and discussion of database error analysis" by Treasury Department IG auditors, held June 17, 1998, was that "the results obtained by the OIG audit were disappointing at best and could have serious consequences for the ATF firearms registry mission."
   

Attorney General Gonzales states, under oath, that ATF should honor NFA paperwork for registered machine guns
On April 6, 2006, Rep. Chris Cannon (R-Utah) told Attorney General Gonzales that "there have been significant questions about the accuracy of the National Firearms Act maintained by the ATF. The Gun Control Act of 1968 provided an amnesty whereby individuals could come forward and register weapons which were often war trophies that they got from their parents who fought overseas." Rep. Cannon noted that a 1998 Inspector General report "found that the ATF contract employees had improperly destroyed NFA records adn ATF employees had not followed proper procedures during the registration. This bureaucratic mess has left many of my constituents with potentially illegal guns solely because of ATF mistakes," and asked: "Would you support legislation allowing collectors to re-register so they are in compliance with the law, especially if they have the appropriate paperwork? And would you agree that an individual should not be faced with prosecution or the loss of a valuable weapon because of ATF's negligence?" Attorney General Gonzales said he would look into the situation.

Interestingly, Chairman John Conyers then observed: "We'll follow up on this. It happens to be--I have just in my district many, many people who have this problem, and they have paperwork that came from the ATF, but it's ignored by--"

The response by Attorney General GONZALES: "That shouldn't be the case."

Rep. Cannon concluded: "Thank you. I appreciate your stating on the record that it should not be the case, and we'll follow up with that."

This exchange is on page 27 of "United States Department of Justice," Hearing before the Committee on the Judiciary, House of Representatives, 109th Congress, 2nd Session, April 6, 2006. Serial No. 109-137. Washington, D.C.: U.S. Government Printing Office, 2006.
   

In 1999, ATF Director Magaw says NFRTR is an "accurate and reliable database of firearms transactions"
In this letter, among other things, ATF Director John W. Magaw states that "Since 1968, the Department of the Treasury and ATF consistently have taken the position that because the 1968 amnesty served its intended purpose of remedying the NFA's constitutional defect, granting an additional amnesty period would be of no value." This is consistent with the 1983 Congressional testimony of Robert E. Powis, ATF Deputy Assistant Secretary (Enforcement) that "The limited amnesty period in 1968 was to assist in overcoming a constitutional defect in the [National Firearms] Act concerning self-incrimination with respect to the registration requirement placed upon possessors of NFA weapons. Having provided a 30-day period within which possessors of unregistered weapons could register them with impunity, the 1968 amnesty served its purpose. Therefore, unregistered weapons could no longer be legitimately registered and possessors' retention of them violated the law" (click here to read it, on page 63).

As documented in a 2001 Congressional statement, ATF improperly allowed thousands of NFA firearms to be registered after 1968, a fact that is proven by "Amnesty Guidelines" in IRS Manual Supplement 76G-41 dated April 16, 1969, by ATF Director Harold A. Serr (pages 19-20); Memorandum by Thurman W. Darr, Chief, ATF Technical Services Division dated March 4, 1975, regarding proposed delinquent registration of firearms (pages 21-22); (click here to read it).

Also note that these registrations violated ATF's own regulations in 26 C.F.R., Section 170.20, published January 1, 1969, more than 3 months before ATF formalized its registration program (in secret) in an obscure IRS publication. Perhaps the most significant section of Director Magaw's letter is its insistence that "The NFRTR is reliable and effective for law enforcement purposes, as it accurately reflects the identity of the person legally entitled to possess a particular firearm. The fact that the registrant is deceased does not affect the validity of the registration," and that the letter concludes " . . . that the NFRTR continues to be an accurate and reliable database of firearms registrations." In December 1998, however, the Treasury Department Inspector General criticized the notion that deceased registrants aren't a problem: "Although the accuracy of the certification may not be affected, we believe that unless ATF acts to address this issue the number of deceased registrants will become greater as time passes and could adversely impact Congress' intention to control these weapons. ATF could be subject to further criticism from the public which would reflect negatively on ATF's efforts to administer the registry" (page 21; click here to read it).

This letter may be cited as "Letter from John W. Magaw, Director, Bureau of Alcohol, Tobacco and Firearms, to Eric M. Larson, dated November 19, 1999."
   

Sen. Bob Smith (R-New Hampshire) requests a complete audit of NFRTR in 2002
On March 20, 2002, Sen. Bob Smith (R-New Hampshire) requested the Treasury Department Inspector General to "conduct a complete audit of the National Firearms Registration and Transfer Record (NFRTR)," noting that "the serious errors in the NFRTR" uncovered in 1998 "have not been remedied." This audit was initiated, and later abandoned in the wake of Sen. Smith's defeat for re-election, and the transfer of ATF to the Department of Justice.
   
Sen. Bob Smith (R-New Hampshire) follows up on his 2002 request for a complete audit of NFRTR2
On June 24, 2002, Sen. Bob Smith (R-New Hampshire) followed up on his March 20, 2002, request that the Treasury Department Inspector General to "conduct a complete audit of the National Firearms Registration and Transfer Record (NFRTR)." There can be no doubt from the elements of the June 24th letter, that Sen. Smith and his staff were well acquainted with the problems that have continued to beset the NFRTR. This audit was initiated, and later abandoned in the wake of Sen. Smith's defeat for re-election, and the transfer of ATF to the Department of Justice.
   
Treasury IG starts new audit of NFRTR in 2002, then terminates it before completion
In 2002, the Treasury Department Inspector General initiated a new audit of the NFRTR to answer the question: "Has ATF taken appropriate steps to improve the completeness, accuracy, and processing times of the NFRTR"? In subsequent IG reports to or ATF testimony before the Congress, however, neither agency provided information about (1) what actions ATF may have taken to address three open recommendations the IG previously made, (2) the status of the new 2002 audit of the NFRTR, (3) how the $1 million the Congress appropriated to render the NFRTR accurate and complete was spent, and (4) whether the NFRTR data base is accurate and complete. On December 10, 2004, a former IG staff member who worked on the original 1997-98 audits of the NFRTR, and also been assigned to work on the new 2002 audit, said that the audit team was told to terminate this audit before it was completed; box up the materials and ship them to the IG; and that none of the audit materials were turned over to the Department of Justice Inspector General when ATF was transferred to the Department of Justice on January 24, 2003. Consequently, it appears that the Department of Justice Inspector General may not be aware of the problems with and Congressional concerns about the accuracy and completeness of the NFRTR data base.
   
In 1999, ATF states that NFRTR data submitted to Treasury IG for its audit "was not accurate" [emphasis in original]
Because of his interest in determining whether procedures ATF said it implemented to render the NFRTR accurate and complete had done so, Eric M. Larson filed a Freedom of Information Act (FOIA) request for ATF to send "Annual Registration Activity" data for 1998, which was comparable to data he had analyzed from 1992 to 1996 as the basis for his complaint to the Honorable Dan Burton, then Chairman of the House Committee on Government Reform and Oversight (click here to read a copy of the letter Chairman Burton sent to the Treasury IG, and related documents). In response to Mr. Larson's FOIA, Averill Graham, provided the requested information, and stated: "The report you refer to was indeed submitted to the Inspector General of Treasury, with the understanding that the report was not accurate, because some of the report functions associated with the database are not working properly." Ms. Graham enclosed a copy of the report, and reiterated: "This report is not accurate." This letter may be cited as "Letter to Eric M. Larson from Averill P. Graham, Disclosure Specialist, Bureau of Alcohol, Tobacco and Firearms, dated May 18, 1999, bearing symbols 112000 99-1420."
   
In 1998, ATF approves "registrations for firearms that do not appear in the NFRTR"
Concerned about the fact that ATF had transferred NFA firearms from his inventory for which he had not submitted transfer applications, among other problems, Robert I. Landies of Ohio Ordnance Works, Chardon, Ohio, complained to ATF about it. In a letter dated May 26, 1998, Assistant Director Jimmy Wooten responded, in part, by requesting Mr. Landies to "provide us with a list of any discrepancies of which you are currently aware." Among these, Mr. Wooten acknowledged, were "receipt of approved registrations for firearms which do not appear in the NFRTR." This letter may be cited as: "Letter to Robert I. Landies, Ohio Ordnance Works, Chardon, Ohio, from Jimmy Wooten, Assistant Director, Firearms, Explosives & Arson, Bureau of Alcohol, Tobacco and Firearms, dated May 26, 1998, bearing symbols F:SD:NFA:WJO 179.101 98-5593."
   
Since at least 1981, ATF has known that dead people own machine guns, but didn't change NFA registration or transfer paperwork to instruct heirs that the guns had to be re-registered, until 2003
There may well be something to the notion that ATF wants NFA firearms to lapse into an illegal status, so ATF can seize and forfeit them, deprive citizens of valuable inherited property and not have as many machine guns to worry about regulating. Consider that in an internal report dated July 1, 1981, ATF employee Deron A. Dobbs wrote: " . . . we have the condition where people who registered firearms under the original National Firearms Act at age 65 would now be 112 years old. We know that these people are dead and their heirs have not taken steps to contact us so that the involuntary transfer created by the registrant's death can be formalized in the NFRTR." In a 1997 internal report, ATF Special Agent Jeff Groh stated that NFA firearms may be registered to dead people, but ATF has no knowledge of that being the case, despite the fact that this report was cited in Congressional testimony. The Groh report, located elsewhere in this section as "1997 internal ATF investigation of NFRTR," is an example of ATF flat out institutionally lying. Also consider that, according to the Dobbs report, there were only 186,516 registered NFA firearms in 1981, and how much grief and unjust loss/destruction of valuable firearms could have been prevented, if ATF had simply advised heirs of the requirement for re-registration. What about all the 65-year-olds who registered firearms during the 1968 amnesty period? What about those guns?
   
In 1992, ATF seized and ultimately destroyed an MP-40 for which no record could be found in the NFRTR, although the owner, Noel Napolilli, had a valid Form 3 approved by ATF.
This unusual case arises from two issues---ATF's loss of all its NFRTR records of a registered NFA firearm, and ATF's later interpretation that the firearm was contraband. Both issues were beyond control of the owner, to whom ATF had approved a valid Form 3 transfer. The NFRTR issue is straightforward, as ATF states: " . . . ATF had no record of registration of the MP40 machinegun to Mr. Napolilli or any other person." The larger issue arises from an apparently informal practice, during the early 1980s, of getting unregistered machineguns off the street by some ATF Special Agents instructing Class II manufacturers to "manufacture" them and file Forms 2 to register them. This little-discussed but widely known practice within the Class III industry may involve as many as 20,000 machine guns currently owned by people who have no way of knowing that these firearms are contraband, or any means of rendering them legal to possess. Mr. Napolilli's letter to the Congress and copy of Noel E. Napolilli vs. United States of America (U.S.D.C., D. Alaska, Case No. Civ. F93-37), are published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1999. 105th Congress, 2nd Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1998, pages 33-39; the "Declaration of Noel E. Napolilli" and ATF's "Laboratory Report" dated March 2, 1993, is published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 2000. 106th Congress, 1st Session. PART 5: MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1999, pages 82-87. ATF's April 11, 2005, letter to Mr. Napolilli, and its letter dated September 18, 1992, to attorney James H. Jeffries III, are unpublished. To read James H. Jeffries' article, "Owners of 'Remanufactured' Guns Beware," click here.
   
In 2001, in response to a citizen's request for assurance that various machine guns whose transfers ATF approved to him aren't contraband, ATF stated: "We will not provide you with such a guarantee."
As the value of some NFA firearms has increased dramatically, especially machine guns, persons to whom ATF has approved transfers of these guns have become increasingly concerned whether the ATF will honor the validity of the NFA paperwork it approves, as more information about the consequences of the inaccuracy and incompleteness of the NFRTR data base becomes more widely known. The concerned writer of this letter, who asked that identifying information be removed for privacy reasons, clearly read and understood certain Congressional statements and testimonies in 1997 and 1998, as well as in 2001, about the hazards of ATF employees illegally registering or transferring NFA firearms many years before ATF approved their transfer to their current owners. As attorney James Jeffries points out in his discussion of the Noel Napolilli case, citizens have no means of determining the pedigree of any NFA firearm, or any recourse if ATF seizes and forfeits the firearm because ATF itself illegally registered or transferred the firearm without the knowledge of its current owner.
   
1979 Department of Justice memorandum to Congress states if ATF can't find an NFRTR record and the NFA firearm owner can, "the only solution" is to declare a new amnesty period
This hard-to-obtain Memorandum was written in 1979 by the Criminal Division of the Department of Justice as part of an investigation into allegedly inaccurate NFRTR records. Addressed to then-Idaho Senator James A. McClure, it determined that if "a particular individual or weapon is registered" in the NFRTR and ATF finds that its "files are missing," then "the only solution would be to declare another amnesty period." The Department of Justice distributed hundreds of copies of this Memorandum in 1996 as part of a package of documents sent to defendants nationwide as a result of the Busey videotape. The Memorandum is typically cited as "Response to Senator McClure," by Philip B. Heyman, Assistant Attorney General, and Lawrence Lippe, Chief, General Litigation & Legal Advice Section, Criminal Division, U.S. Department of Justice, dated November 29, 1979, bearing symbols LL:JJD:ajw, and is reproduced here in full. Note that when the ATF was transferred to the Department of Justice, effective January 24, 2003, the Secretary of the Treasury's statutory authority under Section 207(d) of the Gun Control Act of 1968, to establish new future amnesty periods, was transferred to the Attorney General.
   
In 1934, fears that lost NFA paperwork would "create criminals" were discussed in Congressional hearings
The hazards of losing registration paperwork were raised during debates prior to enactment of the National Firearms Act. On April 18, 1934, Karl T. Frederick, then the President of the National Rifle Association, cautioned: " . . . as a matter of human experience, the owner of a gun is going to lose papers, they are going to get mislaid, they are going to get burned up, if he cannot turn them up when required to do so he is liable to go to jail. I think there ought to be a simple method of obtaining a copy of that paper from the authorities with whom the original was filed. . . . If not, in the actual operation, you are going to create criminals." This page, copied from the original hearing record, was published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1998. 105th Congress, 1st Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1997, page 123.
   
Capt. Monty Mendenhall describes to Congress how ATF lost his NFA paperwork in 1998
During the spring of 1998, Capt. Mont Lamar Mendenhall sent ATF a Form 5 so an NFA firearm he lawfully possessed could be sent to a gunsmith for repairs. ATF responded with a form letter stating the firearm was not registered to him, and requested a copy of the registration. In a March 3, 1999, letter to the Congress, Capt. Mendenhall explained he was "frightened by the prospect of what might have happened if I had stored the original registration document in a less secure location and it had been lost or destroyed in a natural disaster or fire." Under section 922(o) of Title 18, United States Code, ATF is not required to prove Capt. Mendenhall's firearm wasn't registered to automatically convict him of illegally possessing it. Capt. Mendenhall's letter, and exhibits, is published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 2000. 106th Congress, 1st Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1999, pages 74-81.
   
1997 internal ATF investigation of NFRTR
"Report of Investigation" of allegations that employees of the Bureau of Alcohol, Tobacco and Firearms (ATF), National Firearms Act Branch, had acted erroneously and without congressional approval on five separate issues. Investigation No. 970178-1, by Special Agent Jeff Groh, ATF Internal Investigations, August 8, 1997. In TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1999. 105th Congress, 2nd Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1998, pages 67-119. Includes comments about the findings of the investigation by Eric M. Larson on pages 120-129. In the report the subjects are as follows: 01 refers to Gary Schiable, 02 to Ed Owen, and 03 to Terry Cates. This copy of the report was provided by ATF to the instigator of this investigation, Eric M. Larson, under the Freedom of Information Act, therefore his name was not redacted from this version. To read the U.S. Supreme Court's February 24, 2004, ruling that ATF Special Agent Groh is liable to be sued personally for carrying out a raid on a Montana ranch based on an invalid search warrant, click here.
   
Treasury IG audit of NFRTR, October 1998
Special Report on Allegations Concerning the Bureau of Alcohol, Tobacco and Firearms' Registration and Recordkeeping of the National Firearms Registration and Transfer Records, by the Office of Inspector General, United States Department of the Treasury. Report No. OIG-99-009. Washington, D.C.: Department of the Treasury, October 26, 1998. The OIG report states: "The law provided that such amnesty periods could be granted 'after publication in the Federal Register of (the Secretary of the Treasury's) intention to do so.' ATF advised us that the Bureau never issued a notice in the Federal Register. . . . ATF Counsel advised our counsel that a temporary grace period was authorized as an inherent corollary of the statute. ATF, however, was unable to locate any documented support for its limited conferral of amnesty beyond the statutory period exclusive of the IRS Amnesty Guidelines" (pages 11-12). Importantly, the "former section of the IRS manual entitled 'Amnesty Guidelines', dated April 16, 1969," was issued after ATF issued (on January 1, 1969) published regulations in the Code of Federal Regulations stating that unregistered NFA firearms could only be registered during an amnesty period, in violation of ATF's own regulations.
   
Treasury IG audit of NFRTR, December 1998
Audit Report on Allegations Concerning the Bureau of Alcohol, Tobacco and Firearms' Administration of the National Firearms Registration and Transfer Record, by the Office of Inspector General, United States Department of the Treasury. Report No. OIG-99-018. Washington, D.C.: Department of the Treasury, December 18, 1998. This report is notable for what it did audit, which included a finding that thousands of NFA firearms are currently registered to persons who are deceased, and admonishing ATF for that: "Although the accuracy of the certification may not be affected, we believe that unless ATF acts to address this issue the number of deceased registrants will become greater as time passes and could adversely impact Congress' intention to control these weapons. ATF could be subject to further criticism from the public which would reflect negatively on ATF's efforts to administer the registry" (page 21). The report is also perhaps infamously more notable for what it did not audit: "Our scope did not include a review of the accuracy of ATF's certifications in criminal prosecutions that no record of registration of a particular weapon could be found in the registry. We also did not evaluate the procedures that ATF personnel use to search the registry to enable them to provide an assurance to the court that no such registration exists in specific cases. Accordingly, this report does not provide an opinion as to the accuracy of the registry searches conducted by ATF" (page 4).
   
In 2000, the Treasury IG audit reports and related ATF statements were critiqued by Dr. Fritz J. Scheuren, current President of the American Statistical Association
In an effort to obtain an independent assessment of the NFRTR situation, the House Subcommittee on Treasury, Postal Service, and General Government requested Dr. Scheuren to evaluate the Treasury IG audit reports on the NFRTR, as well as ATF's responses to questions posed by the Subcommittee in the spring of 2000. After reading the Treasury IG audit reports, Dr. Scheuren wrote: "In fact, in my own long experience, I cannot think of any instance where poorer results were obtained." Regarding the Subcommittee's questions, Dr. Scheuren concluded: "I can only offer a qualified opinion on the ATF's answers but if their responses are to be taken at face value, two conclusions arise: (1) ATF has serious material weaknesses in its firearm registration system which it has yet to acknowledge, and (2) the ATF steps taken to improve its recordkeeping system clearly lack thoroughness and probably lack timeliness as well." This letter may be cited as "Letter from Fritz J. Scheuren dated May 23, 2000, to the Honorable Jim Kolbe, Chairman, Subcommittee on Treasury, Postal Service and General Government." This letter is published in TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 2000. 107th Congress, 1st Session. PART 3: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 2001, pages 23-26. Dr. Scheuren is also Vice President -- Statistics, of D.C. office of the University of Chicago's National Opinion Research Center (NORC), 1350 Connecticut Avenue, N.W., Suite 500, Washington, D.C. 20036.
   
1998 Treasury OIG critique
In this unpublished document prepared for Rep. Pete Sessions, author Eric M. Larson identifies the evidence he used to determine that the NFRTR is inaccurate and incomplete and, therefore, unreliable. This evidence includes NFRTR transaction data, statements by ATF personnel about the kinds of errors in the NFRTR, and the empirical basis, methods, and theoretical assumptions used in his evaluation and analysis. Therefore, anyone is free to replicate his findings, as well as to perform different analyses involving other data and assumptions. In 1997, ATF stopped providing the types of NFRTR transaction statistics that Mr. Larson used as an evidentiary basis for criticizing ATF's administration of the NFA and management of the NFRTR. Note that this 1999 analysis was completed before the Treasury OIG audit work papers were available. This critique should be referenced as "Work Papers on Errors in the National Firearms Registration and Transfer Record, and Other Issues Regarding the Bureau of Alcohol, Tobacco and Firearms," by Eric M. Larson. Prepared for The Honorable Pete Sessions, House of Representatives, Washington, D.C., April 2, 1999 (unpublished). Also note that virtually all of the evidence Mr. Larson uses came from ATF itself; that is, the data and/or documents he cites were created by ATF. These include documents published by the Government, as well as obtained by the Freedom of Information Act (FOIA) process.
   
ATF reduces "Significant error" rate in NFRTR by redefining a "Significant error" as an "Error"
In this excerpt from "Work Papers on Errors in the National Firearms Registration and Transfer Record, and Other Issues Regarding the Bureau of Alcohol, Tobacco and Firearms," a document reproduced in full below, author Eric M. Larson documents how ATF reduced the "Significant error" rate in the NFRTR. ATF's method required nothing more difficult than redefining a "Significant error" as an "Error." Note, for example, that "Approved wrong firearm to transferee" has been downgraded from a "Significant error" to an "Error" as shown by the documented evidence.
   
 Department of Justice Inspector General Reports on BATF, and related documents, 2005 to present
For 25 years, lost NFA registration documents plague long-time NFA dealer Saeid Shafizadeh of Pars International Corporation, Louisville, Kentucky
As a member of the NFA community since 1982, Saeid Shafizadeh is well known as the owner of Pars Internation Corporation of Louisville, Kentucky. In making publicly available this July 11, 2007, letter, (click here to read it) he wrote to NFA Branch Chief Kenneth Houchens, documenting continuing evidence, in 2007, that the NFRTR remains inaccurate and incomplete, Mr. Shafizadeh commented: "Over the past 25 years I have written many letters of that nature with no avail." What's he talking about?

Answer: In July 2007, Mr. Shafizadeh received an "Error Letter" from ATF, stating that an NFA firearm that ATF approved for delivery to Pars International Corporation and which was delivered on April 30, 2007, "was not shown registered" to Pars. As an enclosure to his July 11, 1007, letter, Mr. Shafinzandel enclosed a copy of "an approved ATF Form-3 dated April 12, 2007," further noting: "Since it appears that the transfer to Pars was pursuant to an approved ATF Form 3, I am very concerned that the National Firearms Registration and Transfer Records do not reflect the same."

When Mr. Shafinzandel says he has "written many letters" like this one during the past 25 years, without effect, it is noteworthy that he memorialized his concerns about the accuracy and completeness of the NFRTR in this affidavit (click here to read it) for a case in 1998 being handled by NFA attorney James H. Jeffries III.

Unfortunately, this issue is not addressed in the Department of Justice Inspector General's recent review of the NFRTR, published in June 2007 (click here to read it). Among other reasons, the June 2007 report is a failure because, as attorney Stephen P. Halbrook stated on page 545 of his treatise, Firearms Law Deskbook (2008 edition): " . . . if the owner or the executor of a deceased owner cannot find the registration paperwork, which may be lost or destroyed, and if the record cannot be found in the NFRTR, then a voluntary abandonment of the firearm may be induced, or even a criminal prosecution initiated. On such issues the report is not sufficiently informative." [emphasis added]

Mr. Shafizadeh distinguished himself by going to law school to become an attorney (while an NFA dealer) so he could sue ATF as needed. Long-term NFA attorney David T. Hardy, Esq., wrote up one of attorney Shafizadeh's cases in his firearms blog, Of Arms and the Law (click here to read it). The case, Baranski and Pars International Corporation vs Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco and Firearms, et al. (click here to read it), the United States Court of Appeals, 6th Circuit, ruled that ATF's search warrant was invalid, and that the ATF Special Agents involved are not entitled to qualified immunity from being sued.    

Summary of Errors in the NFRTR disclosed in audits or reviews by ATF or the Treasury Department Inspector General, 1994 to 1998
Information about errors in the NFRTR in official Government documents is not easy to locate, and this table (click here to read it) summarizes them in context, as well as identifies their locations in the public record. While this information is publicly available, it made no difference in a recent court case in which the accuracy and completeness of the NFRTR may have been relevant.

On September 25, 2007, Dario Giambro of Auburn, Maine, was convicted of the felony charge of Possession of Unregistered Firearm, a Model 1908 Marble's Game Getter Gun. The case is United States vs. Dario Giambro, Criminal Number 07-41-P-S, United States District Court, District of Maine. Before trial, on August 17, 2007, Chief United States District Judge George Z. Singal denied motions in limine to allow testimony by Eric M. Larson as an Expert Witness on the NFRTR, and in seeking to have the NFRTR declared insufficiently reliable for purposes of criminal prosecution (click here to read the motions). Judge Singal determined that Mr. Larson's statements "largely contain conjecture, speculation, and lack any scientific basis" (click here to read Judge Singal's order), referring to July 18, 2007, Declaration by Mr. Larson (click here to read it).

In his order, Judge Singal also cited United States vs. Rith (164 F.3d 1323, 10th Cir. 1999) as the most reliable evidence of the reliability of the NFRTR (click here to read the Rith case), which cites a 1996 audit of the NFRTR by the Audit Services Division, Department of the Treasury, that reported a "critical-error" rate of "no more than 1.5%," and rejected what he termed "outdated" records. In fact, the NFRTR was partially audited by the Treasury Department Inspector General in 1998, and published audit results indicate "critical error" rates of 4.3% for Form 4467, 8.4% for "Letter" and 7.9% for "Other" NFRTR records. Importantly, unpublished Work Papers from the 1998 audit disclose that Treasury IG auditors initially found an 18.4% "critical error" rate for Form 4467; the results for "Letter" and "Other" categories were redacted completely. In response to these initial audit findings, ATF changed the definition of "critical error," as the error summary table shows, to lower the "critical error" rate to that reported in the published report. The same sample of NFRTR data was analyzed for both sets of results. The difference was how "critical error" was defined; that is, analyze the Form 4467 data one way, the results are an 18.4% critical error rate; analyze it using a different definition for critical error, and the critical error rate drops to 4.3%. Indeed, the reaction of NFA Branch staff during "a review and discussion of database error analysis" by Treasury Department IG auditors, held June 17, 1998, was that "the results obtained by the OIG audit were disappointing at best and could have serious consequences for the ATF firearms registry mission."
   

Treasury IG starts new audit of NFRTR in 2002, then terminates it before completion
In 2002, the Treasury Department Inspector General initiated a new audit of the NFRTR to answer the question: "Has ATF taken appropriate steps to improve the completeness, accuracy, and processing times of the NFRTR"? In subsequent IG reports to or ATF testimony before the Congress, however, neither agency provided information about (1) what actions ATF may have taken to address three open recommendations the IG previously made, (2) the status of the new 2002 audit of the NFRTR, (3) how the $1 million the Congress appropriated to render the NFRTR accurate and complete was spent, and (4) whether the NFRTR data base is accurate and complete. On December 10, 2004, a former IG staff member who worked on the original 1997-98 audits of the NFRTR, and also been assigned to work on the new 2002 audit, said that the audit team was told to terminate this audit before it was completed; box up the materials and ship them to the IG; and that none of the audit materials were turned over to the Department of Justice Inspector General when ATF was transferred to the Department of Justice on January 24, 2003. Consequently, it appears that the Department of Justice Inspector General may not be aware of the problems with and Congressional concerns about the accuracy and completeness of the NFRTR data base.
   
Report Number I-2007-006: The Bureau of Alcohol, Tobacco, Firearms and Explosives' National Firearms Registration and Transfer Record, June 2007
This 2007 report by the DOJ-OIG addresses few of the most serious, long-standing problems that continue to raise questions about the accuracy and completeness of the NFRTR. There is no reference in the DOJ-OIG's 2007 report to the letters of Rep. Boozman (click here) or Sen. Kyl (click here) or the November 2005 CRS Memorandum, which was produced in response to a request by Rep. Jim Gibbons (click here), and the report minimally discusses the appropriations report language for Fiscal Years 2002 and 2003 by the Subcommittee on Treasury, Postal Service and General Government instructing BATF to render the NFRTR accurate and complete. This report is based mainly on a survey of BATF Industry Operations Investigators' (IOIs) characterizations of "the effects of NFRTR errors on compliance inspections of federal firearms licensees and ATF field office work," interviews with other BATF officials, and related documents. The scope of the DOJ-OIG's review of the NFRTR is inappropriately narrow, but again confirmed what is already well known; namely, that BATF's inconsistent practices and procedures have created errors and discrepancies in the NFRTR. While the DOJ-OIG report notes "If the NFA weapons owner [sic] can produce the registration paperwork, ATF assumes the error is in the NFRTR and fixes it in the database," this condition apparently fulfills a Department of Justice standard for requiring a new amnesty period. Specifically, if BATF determines that "a particular individual or weapon is registered" and BATF finds that its "files are missing," then "the only solution would be to declare another amnesty period" (click here). If BATF is shown at trial to have lost or destroyed NFA documents, and added such documents to the NFRTR that have been provided by citizens, this and other facts may be sufficient to sustain a legal finding of reasonable doubt that could result in a court-mandated amnesty period. In fact, the accuracy and completeness of the NFRTR remains unknown. This report may be cited as: The Bureau of Alcohol, Tobacco, Firearms and Explosives' National Firearms Registration and Transfer Record, by the Department of Justice Office of Inspector General, Evaluation and Inspections Division. Report Number I-2007-006. Washington, D.C.: Department of Justice, June 2007.
   
Report Number I-2007-007: The Bureau of Alcohol, Tobacco, Firearms and Explosives' Investigative Operations at Gun Shows, June 2007
This report arose from Congressional concerns about inappropriate activities by ATF at a Richmond, Virginia, gun show, which included physically checking the addresses of persons who purchased firearms. These allegations were discussed at Congressional hearings (click here). In response to concerns about ATF's law enforcement activities, the House of Representatives passed H.R. 5092, the "Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) Modernization and Reform Act of 2006," which was not passed by the Senate. The legislation, however, requested the Department of Justice Office of Inspector General (DOJ-OIG) to investigate ATF's actions (click here to read the report on the bill). The DOJ-OIG "found that ATF's decisions to conduct investigative operations, including those in the Richmond area, were based on significant law enforcement intelligence from a variety of sources indicating that illegal activity was occurring or was about to occur at a specific gun show." In January 2006, ATF formally changed its policies so that future residency checks will not be done "without reasonable suspicion that criminal violations may exist." This report may be cited as: The Bureau of Alcohol, Tobacco, Firearms and Explosives' Investigative Operations at Gun Shows, by the Department of Justice Office of Inspector General, Evaluation and Inspections Division. Report Number I-2007-007. Washington, D.C.: Department of Justice, June 2007.
   
Report I-2005-009, Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Disciplinary System, September 2005
This report is an interesting documentation of how ATF fails to discipline its own staff, which isn't a surprise to; this report simply formalizes those notions. This report shows that 47 of a group of 58 problems that were supposed to be reported to the Department of Justice Inspector General were not. For others, while a demotion or firing was decided upon, there was no record showing that it had actually been done. Of 76 files where the agent was disciplined, 16 contained no documentation at all to show why, and not one showed a report of investigation. ATF rules allow a supervisor to both bring charges and be the judge of those charges, which is done most of the time. It also has no consistent standards, so that each case is a law unto itself---which is relevant to a CRS report on the lack of firearms testing standards, also on the NFAOA website; click here to read it.
   
Report I-2005-005
Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Implementation of the Safe Explosives Act, E & I Report No. I-2005-005, March 2005
   
Congressional Testimony on ATF Inspections of Firearms Dealers and implementation of the Safe Explosives Act
Statement of Michael D. Gulledge, Director, Evaluation and Inspections Division, U.S. Department of Justice, Office of the Inspector General, Before the House Committee on Government Reform, Subcommittee on National Security, Emerging Threats and International Relations concerning "Homeland Security: Surveillance and Monitoring of Explosive Storage Facilities," August 2, 2004.
   
Report Number I-2004-006
Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Enforcement of Brady Act Violations Identified Through the National Instant Criminal Background Check System, E & I Report Number I-2004-006, July 2004
   
Report Number I-2004-005
Inspections of Firearms Dealers by the Bureau of Alcohol, Tobacco, Firearms and Explosives, E & I Report No. I-2004-005, July 2004
   
Investigative report on former ATF Director Carl J. Truscott
"Report of Investigation Concerning Alleged Mismanagement and Misconduct by Carl J. Truscott, Former Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives," Special Report, October 2006.
   
 National Firearms Act (NFA) of 1934, as amended
ATF Letter Ruling means that a "pistol grip firearm" is a Destructive Device
In a section entitled "Pistol Grips and Shotguns" on pages 2-3 of its November 2009 FFL Newsletter (click here to read it, ATF stated that "A firearm with a pistol grip in lieu of the shoulder stock is not designed to be fired from the shoulder and, therefore, is not a shotgun." This statement arose from ATF's observation that "Certain commercially produced firearms do not fall within the definition of shotgun under the GCA even though they utilize a shotgun shell for ammunition. For example, firearms that come with a pistol grip in place of the buttstock are not shotguns as defined by the GCA." The procedures for recording transfers of such firearms were published by ATF (click here to read them), and ATF advises they be described as a "pistol grip firearm."

Regulations involving pistol-gripped shotguns were included in the first regulations implementing the NFA, published in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin XIII-2, July-December 1934, pages 433-440 (click here to read them). In particular, S.T. 772 states: "A so-called shotgun with a pistol grip, which fires a shot shell, falls within the class of 'any other weapon' . . . [i]f such a gun is capable of being concealed on the person." S.T. 779 addresses classification of a firearm that is "a single shot, single trigger, and single hammer gun with a pistol grip, and is chambered for shot loads. It is so compact that it may be strapped over the shoulder, either over or under the coat." S.T. 779 further states that "The test described by the [National Firearms] for determining whether a particular weapon comes within the classification of 'any other weapon' . . . is not the length of the barrel, but whether the weapon is capable of being concealed on the person," and that the foregoing gun met the definition of "any other weapon" under the NFA.

When the Congress amended the NFA under the National Firearms Act of 1968 (also known as Title II of the Gun Control Act of 1968), it defined a "destructive device," in part, as "Any weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes." Source: 26 U.S.C, Section 5845(f). "Secretary" refers to the Secretary of the Treasury; however, the Attorney General began performing all functions of the Secretary of the Treasury with respect to firearms after ATF was transferred to the Department of Justice on January 24, 2003.

Until the November 2009 article, and a subsequent ATF Letter Ruling, what many people have called pistol-grip shotguns may have occupied a gray area under the GCA and the NFA. These two recent ATF documents appear to have two effects (1) classifying what ATF now term a "Pistol Grip Firearm" as a Destructive Device, and (2) clarifying that certain Destructive Device firearms have probably been incorrectly classified by ATF as AOWs. Both of these issues will be discussed below, but some historical context will help rendered the explanations more understandable.

The Congress did not define "shotgun" in the original NFA in 1934. In 1960, the Congress amended the NFA to establish a 26" overall length requirement for a rifle or shotgun; a 16" barrel length standard for a rifle; and a $5 transfer tax for all "any other weapon" NFA firearms (click here to read it). Before the 1960 Act, both rifles and shotguns were required to have barrel lengths of 18" (there was no overall length requirement), and AOW transfers were $200. ATF adopted the 26" overall length requirement for a shotgun or rifle as a criteria for "concealibility" to uniformly implement the AOW standard (a rifle or shotgun with less than a 26" overall length, regardless of the length of the barrel, was considered an AOW). It appears that since 1960, ATF may have viewed what many people call a pistol-grip shotgun as a "shotgun" as long as it was at least 26" in overall length and had a barrel or barrels at least 18" in length. Since 1960, various manufacturers have manufactured millions of pistol-grip shotguns, and ATF has regulated them as Title I firearms; and in 1968, ATF did not classify any of them as Destructive Devices, and apparently committed a legal error by failing to do so.

In response to a request for clarification of the law, ATF advised a firearms manfacturer in a letter dated July 20, 2010 (click here to read it): " . . . in an effort to achieve consistent application of the law, ATF utilizes 26 inches as the presumptive standard to determine whether a firearm is 'capable of being concealed on the person' [and] "barrel length is considered only to the extent that it constitutes a portion of the overall-length measurement of a firearm." ATF also stated "because the [AOW] statute does not expressly indicate any overall length, a firearm measuring greater than 26 inches in length may properly be classified as an . . . AOW . . . if it otherwise satisfies the definition of an AOW and there is evidence that the firearm in question was actually concealed on a person [italics in original]."

In a letter dated October 27, 2010, ATF further advised the manufacturer that installing a barrel approximately 17" in length in a firearm that was originally manufactured with a pistol grip in place of a shoulder stock, whose overall length is approximately 26-1/4", "is not a 'firearm' as defined by the NFA." (Click here to read it). The letter also states that if the submitted firearm "is concealed on a person, the . . . classification may change."

The foregoing discussion, played out in Federal District Court in a criminal case, might well cause millions of what ATF now terms a "pistol grip firearm" to be reclassified as an "Any Other Weapon" if any such firearms are concealed on a person. Such a reclassification could occur, for example, in a criminal case if a defendant is found guilty of concealing a "pistol grip firearm" on his or her person. But that is not the only legal complication; the reason is that if the bore diameter of "pistol grip firearm" exceeds 1/2", the firearm is a Destructive Device..

ATF's stated position that a "pistol grip firearm" is not a "shotgun" also affects the classification of certain AOWs, because it appears they are Destructive Devices. For example, various "witness protection"-type shotguns with pistol grips and a barrel or barrels less than 18" in length, have been commercially manufactured and sold as AOWs for decades, typically in 20 gauge or 12 gauge variations. Under the NFA, as we have seen, a Destructive Device is defined as: "Any weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes." Consequently, the foregoing AOWs appear to be Destructive Devices; what else could they be? This is because the only relevant exception exception under the NFA is "a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes."

If one takes ATF's October 27, 2010 letter at face value, it means if ATF decides that a person has concealed a "pistol grip firearm" (regardless of its barrel length) on him- or herself, ATF could legally classify it as an "Any Other Weapon" subject to the NFA. And if the bore diameter of the "pistol grip firearm" exceeds 1/2", the firearm is a Destructive Device. Recall that the 12 gauge Streetsweeper with a barrel 12" in length, equipped with a pistol grip, was sold as an AOW; and that when ATF reclassified Streetsweeper shotgun (originally a Title I firearm) a Destructive Device in 1994, the AOW version was also reclassified as a Destructive Device.

ATF committed a serious legal error in its October 27, 2010, letter. The reason is that ATF determined in writing that a 12 gauge pistol grip firearm with an overall length of 26-1/4" and a barrel 17" in length "is a firearm subject to the Gun Control Act of 1968 (GCA), [but] it is not a 'firearm' as defined by the NFA." Since ATF determined that a "pistol grip firearm" is not a "shotgun," in this instance the firearm is clearly a Destructive Device, because its bore diameter exceeds 1/2". ATF disregarded the Destructive Device definition, which applies to this firearm.

But consider the much vaster implications of ATF's announcement in the 2009 FFL Newsletter, which states that "pistol grip firearms" are not "shotguns." There are millions of 20 gauge and 12 guage "pistol grip firearms" that have been lawfully owned by millions of law-abiding citizens for many years, and they are manufactured by a variety of firearms manufacturers. If ATF ruled these firearms to be NFA firearms (all gauges greater than .410 have bore diameters that exceed 1/2", and consequently would be Destructive Devices), they would be instantly and involuntarily converted into illegal contraband. Moreover, under current law, there is no legal mechanism to enable their continued legal possession except by (1) registering them as NFA firearms during an amnesty established by the Attorney General, or (2) a change in the NFA law, which must be enacted by the Congress and signed by the President. Just because ATF hasn't stated that certain "pistol grip firearms" are Destructive Devices, doesn't mean they aren't Destructive Devices

ATF has created a potential legal conundrum for millions of law-abiding gun owners by stating that that certain "pistol grip firearms" are not shotguns, because apart from the "Any Other Weapon" issue just discussed, ATF has not acknowledged the fact that these firearms are Destructive Devices under the NFA. Again, taken at face value, a "pistol grip firearm" with a bore diameter larger than 1/2" in diameter is a "Destructive Device" under the NFA, unless the Attorney General determines that it is "a shotgun . . . generally recognized as particularly suitable for sporting purposes." By determining that a "pistol grip firearm" is not a shotgun, it is difficult to understand that if the firearm has a bore diameter exceeding 1/2", why ATF would not classify it as a Destructive Device under current law."

Keep in mind that (1) ATF cannot change federal law with a Letter Ruling or any other type of ruling, and (2) a Federal District Judge, confronted with the Destructive Device provision and ATF's public position that a "pistol grip firearm" is not a shotgun, would not instruct a Jury in any Federal District Court to do anything except follow the law. A Federal District Judge has a duty to instruct a Jury about the law -- just because ATF may not have properly enforced the law doesn't mean that the Judge will ignore the law as well. Under the current NFA statute, "pistol grip firearms" whose bore diameter exceed 1/2" are Destructive Devices; they cannot be classified as anything else unless there is a change in the statute.

In the table below, various configurations of "Pistol Grip Firearms" are classified under the GCA or the NFA, depending on (1) their bore diameters, and (2) whether the "Any Other Weapon" category is legally appropriate.

Classifications of various "Pistol Grip Firearms" under the GCA or NFA
Example "Pistol Grip Firearm"Gauge or bore diameterClassification under GCA / NFA
26" overall, 18" barrel(s).410GCA: Pistol Grip Firearm
26" overall, 18" barrel(s)Up to .50 (1/2")GCA: Pistol Grip Firearm
26" overall, 18" barrel(s)Exceeds .50 (1/2"), and includes all gauges larger than .410NFA: Destructive Device
20" overall, 14" barrel(s).410NFA: Any Other Weapon
20" overall, 14" barrel(s)Up to .50 (1/2")NFA: Any Other Weapon
20" overall, 14" barrel(s)Exceeds .50 (1/2"), and includes all gauges larger than .410NFA: Destructive Device

   

Harrison Anti-Narcotic Act of 1914 was the model for the National Firearms Act of 1934
Named for its sponsor, Sen. Francis Burton Harrison (1873-1957), the Harrison Anti-Narcotic Act of 1914 was the model for the National Firearms Act (NFA) of 1934 (click here to read it). According to the legislative history of the NFA, the legal framework of the 1914 Act was chosen because the tax structure it embodied (supposedly as a revenue-producing measure) had been found constitutional by the U.S. Supreme Court, and would avoid a direct confrontation with the 2nd Amendment.

According to one source, the 1914 Act "profoundly changed the nature of the narcotics problem in the United States. This law was intended as a revenue and control measure and was not designed to penalize the user of the drug, to whom no direct reference was made. The enforcement of the law was entrusted to the Bureau of Internal Revenue of the U.S. Treasury Department. It was evidently assumed or hoped that by requiring all persons who handled drugs to register with the government and maintain records the flow of drugs would be subject to public control. The act applied equally to cocaine and to opiates and made no distinctions between them. It required all persons who imported, manufactured, produced, compounded, sold, dealt in, dispensed, or gave away any derivative of opium or of coca leaves (cocaine) to register with the Collector of Internal Revenue, to pay special taxes, and to keep records of their transactions. Preparations containing minute quantities of cocaine or of opiates were exempted from the regulations." (See http://www.drugtext.org/library/books/adopiates/chapter10.htm, visited February 6, 2008).
   

In 1968, then IRS Commissioner Sheldon S. Cohen testifies about amending the NFA
On June 26, and July 9, 1968, then IRS Commissioner Sheldon S. Cohen testified before Congress about proposed amendments to the National Firearms Act (NFA), which were later enacted in slightly different form as the National Firearms Act of 1968, more commonly referred to as Title II of the Gun Control Act of 1968. The AOW transfer tax was proposed to be changed from $5 to $20. During 1965 firearms act hearings, the Treasury Department proposed a change in the "any other weapon" transfer tax from $5 to $10, and a change from $200 to $400 for the transfer of other NFA firearms; however, neither change was made and the transfer taxes remain $5 and $200 for an "any other weapon" and "firearm," respectively. As in the 1965 hearings, a 30-day registration period is proposed. On page 135 is a brief discussion of NFA firearms that have special interest to collectors, which was used to implement the "collector's item" provision by which NFA firearms (with the exception of a machine gun or a destructive device) may be administratively removed from the NFA because they are unlikely to be used as weapons. On page 138 is a discussion of Section 5848 of Title 53, which was a new provision designed to restrict the use of information or evidence "required to be submitted or retained by a natural person" to comply with the NFA or its implementing regulations. Section 5848 was designed more specifically to "overcome the serious problems in the administration and enforcement of the National Firearms Act created by the decisions of the Supreme Court in the Grosso v. United States, 390 U.S. 62; Marchetti v. United States, 390 U.S. 39; and Haynes v. United States, 380 U.S. 85, cases." Also of interest is Commissioner Cohen's testimony on pages 161-162 about the effects on enforcement of the NFA by the Haynes decision, which invalidated the registration requirement because it conflicted with the 5th Amendment: "We had been averaging, under the national act, about 60 to 70 prosecutions per month for national act violations. Since the first of the year, when the Haynes decision was rendered, we are down to about something in excess of 40 a month. So we are talking about 35 to 40 percent in the area of prosecutions under Haynes. And, therefore . . . I would like to see this amendment to the National Act passed at the earliest practical moment." This may be the only known public record of the impact of invalidating the NFA's firearm registration requirement on federal law enforcement, and is significant because it refutes contentions by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), that a new amnesty period would suspend enforcement of the entire NFA. This hearing may be cited as "Federal Firearms Legislation," Hearings before the Subcommittee to Investigate Juvenile Delinquency, Committee on the Judiciary, United States Senate. 90th Congress, 2nd Session, Pursuant to S. Res. 240, 90th Congress. June 26, 27, 28 and July 8, 9 and 10, 1968. Washington, D.C.: U.S. Government Printing Office, 1968.
   
Senate Report No. 1866, which includes proposed amendments to the NFA in 1966
While this report is not devoted mainly to NFA issues, it contains important legislative history that influenced the Gun Control Act of 1968 as well as the National Firearms Act of 1968, more commonly known as Title II of the GCA. Legislative history is important because it discloses (1) evidence if any, for Congressional "findings" which often accompany enacted legislation, and (2) clarifications of intent of the purpose of the legislation. Of notable interest is the Congressional finding on page 7: "While destructive devices are not a substantial factor in the commission of serious crimes (only a handful of cases were made known to the committee in which these weapons were actually used in the commission of the 86,000 firearms crimes committed in 1965), neither are there any significant sporting purposes for which they are suited." The report further states: "Both Senators [Thomas J.] Dodd and [Roman] Hruska have introduced bills to bring destructive devices within the scope of the National Firearms Act. These bills are pending in the Senate Committee on Finance. These bills should be given early consideration." A brief discussion of destructive devices appears on page 10. Amendments to the NFA were also proposed in other legislation discussed here; for example, to further restrict the importation of NFA firearms, in "Individual Views of" then-Senators Thomas J. Dodd, Birch Bayh, Edward M. Kennedy, Joseph D. Tydings, Hiram L. Fong, Jacob K. Javits, George A. Smathers, and Edward V. Long (see pages 50-51). On page 90, it was noted: "One particularly disturbing facet of the traffic in military surplus firearms involves the importation of antitank guns, bazookas, mortars, and similar larger caliber weapons. One importer told the subcommittee that he alone had imported over 4,000 such weapons. These firearms have not been imported for national defense purposes, but for indiscriminate sale to anyone with the purchase price, including lawless elements."
   
Senate Report No. 1501, legislative history of Gun Control Act and National Firearms Act of 1968
Among the few sources of legislative history for the 1968 amendments to the National Firearms Act of 1934, enacted under Title II of the Gun Control Act of 1968, is Senate Report No. 1501, which discusses the Senate's version of the legislation. It is often not well understood, but the legislative name of Title II is the National Firearms Act of 1968, as shown on page 52. Indeed, Section 5841(d) states: "Firearms registered on effective date of this Act.- A person shown as possessing a firearm by the records maintained by the Secretary or his delegate pursuant to the National Firearms Act in force on the day immediately prior to the effective date of the National Firearms Act of 1968 shall be considered to have registered under this section the firearms in his possession which are disclosed by that record as being in his possession." This provision of the NFA was key in enabling Ken Crane to obtain a DEWAT that ATF contended was not properly registered to a decedent whose widow wanted to sell the firearms; click here and here to read about the case.

Amendments to the NFA are listed on pages 8-20, summarized on page 26, and there is a section-by-section analysis on pages 40-53. Of particular interest is Section 207(b), which established the 30-day amnesty period from November 2, 1968, to December 1, 1968, and Section 207(d), which authorized the Secretary of the Treasury (now the Attorney General, following ATF's transfer to the Department of Justice in 2003) unlimited numbers of future amnesty periods not to exceed 90 days per amnesty period, provided that the Attorney General publish notice of his intention to do so in the Federal Register. There has often been confusion and misunderstanding about the 1968 amnesty provision, which some persons incorrectly believe should have been 90 days; however, the discussion on page 53 makes clear this was never the case. The Congress intended the amnesty period to provide complete registration, stating that "30 days from the effective date of section 201 of title II every firearm in the United States should be registered to the person possessing the firearm" (see page 43). This document may be cited as Senate Report No. 1501, Calendar No. 1486, 90th Congress, 2nd Session, Gun Control Act of 1968. Report together with Individual Views to accompany S. 3633.
   

Congress amends NFA to cover home-made sawed-off shotguns
This little-known amendment to the NFA was enacted to cover a situation where persons making short-barreled rifles or shotguns by sawing off the barrel(s), which was not covered by the NFA at the time. This legislation was cited and discussed in a 1982 brief as follows: "In 1952, Congress' attention was again drawn to the sawed-off shotgun problem and Congress acted to cover the activity of individuals who made their own sawed-off shotguns. A gap existed in the NFA's coverage because generally, making a single firearm was not 'engaging in the business' of manufacturing firearms. Thus, a person could circumvent the NFA occupational tax by purchasing a shotgun and sawing off the barrel. If the weapon was not transferred, no transfer tax would attach. [citation omitted here] To close this gap, Congress taxed 'the action of sawing off the barrel or otherwise making' a sawed-off shotgun (see United States v. One Remington .12 Gauge Shotgun, United States Court of Appeals for the 11th Circuit, On Appeal from the United States District Court, Northern District of Georgia, Rome Division, Brief for the United States of America No. 82-8546; click here to read the brief).

As Senate Report No. 1495, 82nd Congress, 2nd Session, explains (click here to read it): "By the comparatively simple device of purchasing standard shotguns from legitimate dealers and then sawing off the barrels to a length of less than 18 inches, criminals are able to make vicious wepaons without incurring the penalties of the [National Firearms A]ct. Since such weapons are seldom transferred after the barrels have been sawed off, the owners cannot be prosecuted for possession of a firearm unlawfully transferred. Hence, the act does not reach those who possess sawed-off shotguns made in this matter. It is the defect in the act which the bill is designed to correct." To read the House version, H.R. Report No. 1714, click here.
   

The National Firearms Act (Public Law 73-474, enacted June 26, 1934), its original and various subsequent implementing regulations
The NFA, which became effective July 24, 1934, was the first federal gun control law in the United States, and implemented by Regulations 88 relating to Taxes on Certain Firearms and Machine Guns (click here). Additional Treasury Department rulings amending Regulations 88 were published in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin XIII-2, July-December 1934, pages 433-440 (click here). Regulations 88 were revised and published again in 1941 (click here) and 1952 (click here), before being incorporated into the Code of Federal Regulations. The regulations weren't revised very often, in part because there were relatively few registered NFA firearms and not many licensed manufacturers, dealers or importers. In fact, as of September 30, 1984, there were just 200,529 registered NFA firearms of which 105,125 were machine guns, according to Congressional testimony of then-ATF Director Stephen E. Higgins, which appears elsewhere in "Resources" (click here).
   
ATF Director testifies before House Judiciary Committee that registered NFA firearms are not a law enforcement problem
Stephen E. Higgins, BATF director, testifies before Congress in 1984 about the criminal misuse and availability of machineguns and silencers. The BATF director clearly states that in the BATF's experience, legally registered NFA weapons are not used in crimes. These hearings may be cited as "Armor Piercing Ammunition and the Criminal Misuse and Availablility of Machineguns and Silencers." Hearings Before the Subcommittee on Crime, Committee on the Judiciary, House of Representatives, 89th Congress, 2nd Session, on H.R. 641 and Related Bills, May 17, 24 and June 27, 1984. Serial No. 153. Washington, D.C.: U.S. Government Printing Office, 1986.
   
In 1983, then-Senator Robert Dole proposed amending the NFA to established a "continuous" amnesty period
Robert E. Powis, Deputy Assistant Secretary of Enforcement in the Treasury Department responds to inquiries from Senator Dole in 1983 on S. 914, "A bill to protect firearms owners' constitutional rights, civil liberties, and rights to privacy." Senator Dole proposed allowing hold-harmless registration of unregistered NFA firearms or devices, as well as lifting the veil of secrecy regarding registration information. The language in the amendment is useful as discussions and debates about an amnesty period arise. Mr. Powis also stated that the 30-day amnesty period in 1968 had served its purpose, and thus unregistered NFA firearms could no longer be registered, contradicting the fact that ATF had registered thousands of NFA firearms after the 1968 amnesty period expired, as established in 1998 audits of the NFRTR by the Treasury Department Inspector General, and further documented by Eric M. Larson in his 2001 Congressional statement. These 1982 hearings may be cited as "The Federal Firearms Owner Protection Act." Hearing Before the Committee on the Judiciary, United States Senate, 98th Congress, 1st Session, on S. 914, October 4, 1984. Serial No. J-98-70. Washington, D.C.: U.S. Government Printing Office, 1984. For ATF's legal analysis of NFA documents containing "tax return" information, and the scope of information that may be released as well as withheld, click here. This document may be cited as "Memorandum from Marvin J. Dessler, Chief Counsel, to the ATF Director dated August 18, 1980, bearing symbols CC-28,778 RMT and numbered 22889."
Hearings on the National Firearms Act, House of Representatives, 1934
The original 1934 hearings debating the legislation which became the National Firearms Act are difficult to find; this copy, and that of the Senate hearings, was printed from microfiche at the Library of Congress, Washington, D.C., the only version available there (at a cost of 25 cents per page, some 8 years ago). The House version is rich in historical details, explains why (to this day) a Ruger 10/22 semiautomatic carbine is defined as a machine gun in Washington, D.C.; testimony by Walter B. Ryan, Jr., President, Auto-Ordnance Co., about the Thompson Submachine Gun; and repeated notions about defining a pistol as "any firearm with a barrel less than 12 inches in length," a definition then in use by various states, including Massachusetts (hence the effort by some manufacturers to avoid this classification by using barrels 12" or more in length; such responses to firearms law and regulation are established historical fact). On page 126, Adjutant General Milton A. Reckord states: "Let me point out this: When the Attorney General came here with the bill in the first place, it provided that every time a man in your country wanted to buy a pistol, he had to throw his leg over his horse and go a hundred miles or so to the office of the collector of internal revenue to get a stamp; ride a hundred miles to get a dollar stamp to put on that pistol." This document may be cited as "National Firearms Act." Hearings before the Committee on Ways and Means, House of Representatives, 73rd Congress, 2nd Session, on H.R. 9066, April 16, 18, an dMay 14, 15 and 16, 1934. Washington, D.C.: U.S. Government Printing Office, 1934.
   
Hearings on the National Firearms Act, United States Senate, 1934
While the Senate hearings on the National Firearms Act of 1934 are not as frequently cited as those in the House of Representatives, they are equally rich in historical details. Of a proposed requirement for a firearms licensee to file a $3,500 bond, one critic wrote: "It is a rank injustice and a move in favor of the gangster to attempt to charge such an outrageous fee. It lacks consideration for the honest, law abiding citizen when it is readily conceded that the bandit, no matter how drastic a law is, will always have his gun and, too, without paying a license fee to carry it. Banditry would become more lucrative and less perilous for the underworld" (page 67). Compare, too, the lengthy testimony (on pages 32 to 51) of Dr. Frederick L. Hoffman, a "consulting statistician" with nearly 50 years' experience who submitted an analysis entitled "The Sinister Menace of Firearms" to the Subcommittee, with the 2-page letter from Dr. Fritz J. Scheuren, the current President of the American Statistical Association, written in the year 2000 to then-House Appropriations Subcommittee Chairman Jim Kolbe, stating that the NFRTR database has "serious material weaknesses" and should be subjected to a complete audit by a disinterested entity outside of ATF because the scope of the original audit was "too narrow." This document may be cited as "To Regulate Commerce in Firearms." Hearings before a Subcommittee of the Committee on Commerce, United States Senate, 73rd Congress, 2nd Session, on S. 885, S. 2258 and S. 3680, May 28 and 29, 1934. Washington, D.C.: U.S. Government Printing Office, 1934. IMPORTANT NOTE: Because of a scanning error, page 79 is nonsequential and appears following page 104.
   
1934 floor debate on the National Firearms Act in the House of Representatives
According to the floor debate on the House of Representatives, the National Firearms Act of 1934 was to cover only "Machine guns, sawed-off shotguns, rifles, silencers, and mufflers." As with all things generally legislative, the devil is in the details. It was not until nearly 20 years later in 1954, under Public Law 83-591, that the Congress defined the terms "rifle," "shotgun," and "any other weapon." The 1954 legislation was passed because the ATF's "technical interpretation" that the NFA included "blunderbusses, muzzle-loading shotguns, and other ancient or antique guns" did not reflect Congressional intent. The original Congressional debate may be cited as "Taxation of Manufacturers, Importers, and Dealers in Certain Firearms and Machine Guns," Congressional Record--House, June 13, 1934, pages 11398-11400.
   
Senate report on H.R. 9741 (NFA of 1934 as enacted)
There is always a report on enacted legislation, and the Senate report discusses the NFA and why it was passed. This document may be cited as "Taxation and Regulation of Firearms." Senate Report No. 1444, 73rd Congress, 2nd Session, Calendar No. 1542. June 6 (calendar day June 15), 1934.
   
Example of a form used to register unregistered firearms after the NFA was enacted in 1934
There are several versions of Form 1 (Firearms), which was used to register unregistered NFA firearms. This example is a December 1934 revision used to register an unregistered H&R Handy-Gun on August 3, 1938. The failure to register was treated, as the accompanying Affidavit demonstrates, as a tax delinquency. All NFA registration documents were always required to be filed in duplicate original.
   
1936 amendment removes a rifle .22 caliber or smaller, with a barrel 16" or longer, from purview of the NFA
Less than 2 years after it was enacted, the Congress amended the NFA to remove a rifle of .22 caliber or smaller from purview of the NFA "if its barrel is 16 inches or more in length," under Public Law 74-490. The legislative history of this statute makes clear that certain firearms determined to be subject to regulation under the NFA were being inappropriately regulated. According to Senate Report No. 1682, 74th Congress, 2nd Session, the Congress determined that under the NFA, "a discrimination and hardship, which was never intended, has been inflicted upon two or three manufacturers of .22 and less caliber hunting rifles" (click here to read it). Virtually identical language was used in H. R. Report No. 2000, 74th Congress, 2nd Session, indicating the close agreement on the issues; click here to read it. Accordingly, the Treasury Department amended Regulations 88 in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin XV-1, January-June 1936, page 468; click on the title of this section to read them.
   
1938 amendment changes $200 transfer tax to $1 for Marble's Game Getter Gun
Congress further amended the NFA in 1938 by enacting Public Law 75-651, providing a less confiscatory taxation scheme for Marble's Game Getter Gun, a popular firearm used by campers, woodsmen, trappers, lumberjacks, farmers and others who needed a varmit gun, but didn't want to be inconvenienced by having to carry a full-length rifle or shotgun. In H.R. Report No. 2457, 75th Congress, 3rd Session (click here to read it), the Congress determined this firearm "may be used either as a shotgun or a rifle and undoubtedly has legitimate uses," and that it is "entirely proper to reduce to some extent the license tax on manufacturers and dealers in such firearms." In similar language, Senate Report No. 1951, 75th Congress, 3rd Session (click here to read it) was slightly more forceful: "The weapon to which the legislation refers may be utilized either as a shotgun or as a rifle and has legitimate uses." The $500 yearly tax for manufacturers was changed to $25, and the $200 annual dealer tax to $1--evidence the Congress intended to apply only a token taxation scheme. These legislative changes were implemented by amending Regulations 88 in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin 1938-2, July-December 1938, pages 469-471 (click on the title of this section to read it). Despite these low tax rates, including a $1 firearm transfer tax, production of the Game Getter ended in 1942 and was never resumed.

The enduring popularity of the design commercialized by Marble's Game Getter gun is reflected in various "survival" rifles issued by the U.S. Air Force, including the .22 Hornet/.410 M6 Survival Gun, with 14" barrels, as well as the .22/.410 Firearms International Bronco, with 12" barrels, which are subject to the NFA.
   

In 1945, Congress changed the $200 transfer tax to $1 for a single-shot firearm like the smooth bore .410 H&R Handy-Gun and Stevens Auto-Shot No. 35, provided the barrel was 12" or more in length
The prohibitive $200 transfer tax on the smooth bore .410 H&R Handy-Gun, and similar firearms, had the effect of "freezing" these guns in the hands of their owners and of dealers who had them in their stock, because the transfer tax vastly exceeded their retail value (about $16 new in 1934). To bring the NFA into consistency regarding small-game guns such as Marble's Game Getter Gun, the Congress enacted Public Law 79-177 to provide an identical taxation scheme for a "certain nonautomatic, single-barreled guns, usually of a low-caliber having a barrel 12 inches or more in length and designed primarily to be held in one hand when fired." As explained in H.R. Report No. 869, 79th Congress, 1st Session (click here to read it), the Congress determined that these guns "have legitimate uses" and are "useful on farms and elsewhere for extermination of vermin and predatory animals and in hunting and trapping activities where quick firing at short range is essential." The Congress further determined that the high NFA taxation rates "work a severe hardship upon persons who wish to obtain this type of gun for such use." Senate Report No. 520, 79th Congress, 1st Session (click here to read it), reached similar conclusions. Changes in the NFA tax rates are reported in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin 1945, January-December 1945, pages 455-457 (click on the title of this section to read it).

It is worth noting that a proposed version of the NFA, which was not enacted, defined a "pistol" as "any firearm with a barrel less than 12 inches in length," a definition then used in some states. Consequently, firearms such H&R Handy-Gun were designed with a 12-1/4" barrel to avoid classification as a "pistol." (Both the smooth bore H&R Handy-Gun and the Stevens Auto-Shot No. 35 were manufactured with 8" barrels.) Although the Congress clearly did not intend to eliminate such firearms, their commercial manufacture was halted in 1934, and none were ever commercially manufactured again. This is a sobering lesson---that even token taxation can still destroy firearms that the Congress determines "have legitimate uses."
   

In 1946, the Treasury Department amended the NFA regulations to restrict importation of NFA firearms
Possibly because of concerns about the massive legal importation of War Trophy firearms, the Treasury Department amended the NFA regulations, effective March 15, 1946, to require that an imported NFA firearm "is to be lawfully used and is unique or of a type unobtainable within the United States." Importantly, members of the Armed Forces were authorized to bring or send War Trophy firearms to the United States from October 28, 1943, to approximately October 1, 1946 (see "1946 ATF Memorandum describing ATF efforts to register or deactivate War Trophy firearms subject to the NFA" in the "Ken Crane/DEWAT . . . " section). Accordingly, the Treasury Department amended Regulations 88 in the INTERNAL REVENUE BULLETIN, Cumulative Bulletin 1946-1, January-June 1946, page 302.
   
In 1960, the Congress amended the NFA to establish a 26" overall length for a rifle or shotgun to be exempt from the NFA, a 16" minimum barrel length for an exempt rifle, and a $5 transfer tax for all AOWs
Page 27 contains familar words: "The firearms industry is threatened by a wave of uninformed hysteria over the relationship between the availablility of weapons and crime. Careful work by intelligent people is being applied, and should be applied, to this important problem; . . . The success of such efforts protects the firearms industry against the uniformed demands that crime be cured by indiscriminate, ill-conceived additions to existing regulation of commerce in firearms, which are easy to legislate but have absolutely no chance of reaching the intended target, namely, crime." Until these 1960 amendments, gun owners had to hire gunsmiths to weld 2" barrel extensions on rifles originally manufactured with 16" barrels, to conform with the 18" barrel length requirement for rifles to be exempt from the NFA. There was no evidence that rifles with 16" barrels were unusually susceptible for use in crimes; however, still, the Chief of Police of Omaha, Nebraska, wrote that the amendments "will increase law enforcement problems in this city." The Congress also recognized that so-called "gadget" and bizarre or unusual firearms in the AOW category were mainly of interest to collectors, not likely to be used as weapons by criminals, and so changed the $200 transfer tax to $5 to accommodate collectors. This document may be cited as "Firearms." Hearing before the Committee on Finance, United States Senate, 86th Congress, 2nd Session, on H.R. 4029, April 26, 1960. Washington, D.C.: U.S. Government Printing Office, 1960.
   
Why was the H&R Handy-Gun, a firearm designed as a pistol to be held in one hand when fired, classified as an AOW in 1934 under the NFA?
The short answer: The manufacturer, Harrington & Richardson Arms Co., Worchester, Mass., successfully argued that the H&R Handy-Gun was not a "pistol or revolver" within the meaning of the Internal Revenue Act of 1926, and thus didn't have to pay the 10% federal excise tax on pistols and revolvers. When the NFA was enacted in 1934, "it was easy," as ATF's predecessor pointed out, to classify the H&R Handy-Gun and similar firearms as "Any Other Weapon." This historical file on the H&R Handy-Gun makes for fascinating technical and political reading, because (1) the government's experts all believed the H&R Handy-Gun was a pistol, citing various technical characteristics and features, (2) Rep. George Stobbs of Massachusetts said it wasn't, (3) the firearms manufacturers, including J. Stevens Arms & Tool Co., won the exemption, and (4) the Bureau of Internal Revenue, noting the manufacturers' position and the 1926 ruling, was on valid and reliable legal ground in deeming the H&R Handy-Gun an "Any Other Weapon." It is a telling lesson of what can happen when politics and technical design features of firearms collide, and what happened in 1926 and 1934 is obviously still relevant in 2005. The interlude of the ATF Director determining that the .45/.410 Thompson Contender Pistol was not an NFA firearm in February 1969, and two ATF Special Agents visiting Ken Thompson and Warren Center and threatening to classify it as an NFA firearm if they didn't halt production of the .45/.410 barrel, an illegal threat that was effective until 1992, when attorney Stephen P. Halbrook obtained the 1969 memorandum via a Freedom of Information Act request and put an end to ATF's illegal shakedown of a legitimate firearms business, demonstrates that one can never be too vigilant about making sure that ATF is legally prevented from violating the law. It is also a mute demonstration of the power of filing a Freedom of Information Act request, when ATF's "enforcement" of the law seems to be without a valid legal basis.
   
In 1937, the Congress declines to exempt American inventors from the $200 transfer tax
In 1937, the Senate Committee on Military Affairs proposed amending the NFA to exempt "American inventors and designers who wish to purchase firearms for their use in experimental work in which the War Department has a military interest" from the $200 transfer tax. While this measure was supported by the Secretary of War, in a letter dated March 15, 1937, the Congress did not pass this amendment.
   
 Gun Control Act of 1968: Hearings, Legislative History and related documents
Hearings on amendments to National Firearms Act and Federal Firearms Act, House Committee on Ways and Means, July 1965
These July 1965 hearings may be viewed as companion hearings to those on juvenile delinquency and, with the 1968 hearings, as the basis for the Gun Control Act (GCA) of 1968 and the National Firearms Act of 1968, the latter better known as Title II of GCA.

These lengthy hearings were published in two Parts, as noted and summarized below. While there is continual reference to proposed amendments to the National Firearms Act, the bulk of the testimony and debate pertained to Title I firearms. Interestingly, there is some interchange between proposals to amend the National Firearms Act and the Federal Firearms Act, regarding the treatment of "destructive devices," which were ultimately put under the NFA because they were not deemed to have a "sporting purpose." Sections of the hearings pertinent to the NFA have been identified below.

* * *

"Proposed Amendments to Firearms Acts." Hearings before the Committee on Ways and Means, House of Representatives, 89th Congress, 1st Session. Proposed Amendments to the National Firearms Act and the Federal Firearms Act, July 13, 13, 14 19, 20, 21, 22, 23, 26, 27 and 28, 1965. Part 1. Washington, D.C.: U.S. Government Printing Office, 1965. [pages 1 to 355; click here to read]

Pages 3 to 25 summarize the need to "Bring under Federal control interstate shipment and disposition of large caliber weapons such as bazookas and antitank guns, and destructive devices such as grenades, bombs, milliles, and rockets," curb the flow into the United States of surplus military weapons and other firearms not suitable for sporting purposes, and "increase to twice the present rate of all taxes under the National Firearms Act of 1934," noting that "the principal rates have not been changes since the original enactement of the act in 1934," and that "it is necessary to increase the rates in order to carry out the purposes of the act."

Also of interest is a provision for a registration period to bring "destructive devices" under the NFA, whereby persons possessing such devices "shall have 30 days from the effective date of this act to register such firearm, and that no liability (criminal or otherwise) shall be incurrred in respect to failure to so register under such section prior to the expiration of such 30 days. This provision is necessary so that a person who possesses a firearm which is brought under this coverage of the National Firearms Act, by reason of the amendments to such act which are contained in the first section of the bill, will be afforded a reasonable opportunity to comply with the registration requirements contained in subection 5841 of the Internal Revenue Act of 1954." The 1965 Treasury Department regulations on NFA firearms are reproduced in full on pages 138-150. Note that persons could register unregistered NFA firearms by filing Form 1 and identifying the firearm; there was no requirement to provide photographs, fingerprints, or certification by a law enforcement entity.

Pages 73-83 contains a detailed discussion of the constitutionality of the proposed legislation, within a context of the 2nd Amendment; further discussion of 2nd Amendment issues appears on pages 202-218.

One of the bills to amend the NFA lists proposed tax increases (from $200 to $200, and from $5 to $10); see pages 174-175. There is a propose definition of "antique" firearm on pages 177-178 based on designs used before 1870, and a provision for Secretary to remove from the NFA any device which the Secretary finds is not likely to use as as weapon. On page 185, the NRA proposed that an "antique" firearm included those manufactured prior to 1898, which used loose powder and ball, and firearms with obsolete ammunition. Page 350-351 further clarifies 1898 as "the approximate date of transition in ignition from black powder to the current modern smokeless powder." On page 200, there are listed objections to "sporting purpose" and other language regarding importations as vague and said they woud "grant the Secretary of the Treasury the authority to do away with all imports.

* * *

"Proposed Amendments to Firearms Acts." Hearings before the Committee on Ways and Means, House of Representatives, 89th Congress, 1st Session. Proposed Amendments to the National Firearms Act and the Federal Firearms Act, July 13, 13, 14 19, 20, 21, 22, 23, 26, 27 and 28, 1965. Part 2. Washington, D.C.: U.S. Government Printing Office, 1965. [pages 357 to 717; click here to read]

While the increased regulation of NFA firearms is prominently featured in the 1965 hearings, there is little testimony from people who would be affected by this legislation. One exception is the testimony of one Leslie E. Field, who was then a class 4 dealer under the NFA. As Mr. Field puts it: "A class 4 dealer is one of that extremely small group of persons -- some years ago there were only 75 of them -- who pays the dealers' occupational tax of $200 and is able therefore to handle weapons under the act," further noting "it may be estimated that less than 100 persons an dbusiness organizations in the close to 200 million population of the United States have chosen to obtain licenses, which does not sound like a large, frivolous group." (pages 449-450) Mr. Fields makes detailed observations about the lack of criminal use of large, obsolete military ordnance, adding that "no cannon has been used in bitter family arguments, and the juvenile gangs are apparently stilll indifferent to their insidious charm" (page 451). and further suggests that the Congress ought to "avoid getting into the area of regulating a speculative crime."

Interestingly, Mr. Fields recognized that ATF did not have sufficiently competent technical personnel, and suggested that the Congress consider "setting up within the Alcohol Tax Unit, of a new, and larger, firearms division, and providing an attorney within the section, together with a definite liaison to a relevant agency of the Department of the Army to provide the section with technical assistance. . . . "What the Alcohol Tax Unit needs in our opinion is, No. 1, a definite technical liaison and trade technical personnel in the analysis of firearms which it does not have and which it has to borrow form the armed services very often to write opinions and it needs an emphasis within the Treasury Department, an emphasis of its importance." (pages 460-461).

Other testimony was given regarding the Chicago Palm Pistol, an unusual "any other weapon" firearm that was designed to fire ammunition that had become obsolete, and "the viciousness of the Alcohol and Tobacco Tax people's action" in charging a California dealer with possessing three unregistered Chicago Palm Pistols, although the dealer prevailed in court and ATF had to return the pistols. (pages 472-473). This case involved "one Minneapolis palm protector pistol and two Chicago palm protector pistols," and is further described on pages 490-491. In response to the court ruling, then-ATF Director Dwight E. Avis advised the National Rifle Assocation that ATF would regard the ruling as valid "only within the jurisdiction of said court, specifically the southern judicial district of California," and that Revenue Ruling 55-44, published on January 24, 1955, in Internal Revenue Bulletin No. 4 (Rev. Ruling 55-44, C.B. 1955-1, 29) takes precedence elsewhere."

Pages 618-619 contain a letter from the Connecticut State Pistol and Revolver Association, Inc., criticizing ATF for "numerous instances of abuse by Treasury agents by harasment [sic] of legitimate dealers, collectors, and metchants who deal in the welded-up and useless ornaments known as dewats. The history of harassment, embarrassment and senseless criminal and civil prosecutions of these people reads like a chapter from the numerous books on tyranny and its successful imposition." On pages 663-664, Washington Arms Collectors, Inc., expressed concerns about "tens of thousands of antique U.S. Army and Navy single-shot cartridge rifles and pistols notably U.S. rifle models 1868, 1869, 1870 and 1871, and numerous other cartridge single-shot rifles, not to mention English double barrel rifles, all having a bore of one-half inch or more in diameter. The former (antique rifles and pistols) are particularly dear to thousands of colllectors of U..S. martial and historical arms," and suggested language to exempt them from the proposed definition of a "destructive device." On page 667, another the President of the Memphis Gun Collector's Association stated that "most weapons used in the Civil War, Indian Wars, and Revolutionary War in this country have bores of 1/2 inch or larger in diameter." Another commentor stated that the NFA "destroyed the American genius for building superior automatic weapons, and therefore contributed directly to the deaths in combat where tactical conditions caused it, of American soldiers equipped with indifferent arms." (page 682)
   

1968 gun control hearings focus on national registration of all firearms, and include proposed NFA amendments
Federal Firearms Legislation, Hearing before the Subcommittee to Investigate Juvenile Delinquency of the Committee on the Judiciary, United States Senate, 90th Congress, 2nd Session, Pursuant to S. Res. 240, 90th Congress, on S. 3691 A bill to amamdne Title 18, United States Code, S. 3604 A bill to require the registration of firearms, S. 3634 A bill to disarm lawless persons, S. 3637 A bill to prvide for the establishment of a National Firearms Registry. June 26, 27, 28, and July 8, 9, and 10, 1968. Washington, D.C.: U.S. Government Printing Office, 1968. [917 pages; click here to read]

Following the assassinations of the Rev. Martin Luther King, Jr., and Senator Robert F. Kennedy in the spring of 1968, Congressional hearings were held to advocate for a system of the national registration of firearms, a measure endorsed by then-President Lyndon B. Johnson. Under S. 3604, "any person who owns or possesses any firearm, or who transfers any firearm to any other person by whatever means," would be required to register the firearm with the Federal Government within 270 days after passage of the legislation, and pay a fee of $1 per firearm for doing so. The legislation also provided for a 180 day amnesty period that would allow any person who didn't want to register a firearm to surrender it to any Federal, State or local law enforcement official without penalty, but the provision offered no immunity from prosecution to persons charged with a firearm offense. Under S. 3634, a similar registration system would be established; personal information required would be "the name, age, address, and social security nmber, if any "for both transferor and transferee," and for the firearm "the name of the manufacturer, the caliber or gage [sic], as appropriate, the model and the type, and the serial number identification, if any, of the firearm," and all firearm and ammunition possession would thereafter be licensed. Persons would be required to report lost or stolen firearms to the Secreatary of the Treasury.

There is an interesting, but brief, discussion on page 64 by then Sen. Roman Hruska about S. 1854, a bill he introduced in 1967 that "would make it unlawful for a person under 21 years of age to possess a National Firearms Act firearm," which was submitted for comment to the Treasury Secretary and the Attorney General. The latter advised Sen. Hruska: "It seems doubtful that . . . provision can be justified under the taxing or commerce powers, or under any other power enumerated under the Constitution for Federal enactment. Consequently, the Department questions the advisability of including in the measure a measure which could be construed as an usurpation of a police power reserved to the states by Article 10 of the United States Constitutional Amendments." Then -Attorney General Ramsey Clark disagreed, stating: "In my judgment, the Congress clearly has the power under the commerce clause, and also under the delegated powers of the Constitution which empower the Congress to enact criminal laws for the public safety, and to do all things necessary and proper to enforce those laws." On pages 80-87, Attorney General Clark is engaged by then Sen. Strom Thurman, who questioned the legal authority of the federal government to require registration at the state level, arguing that the commerce clause does not apply to intra-state commerce. The Treasury Department estimated the cost of registering all guns in the United States (75 million, at the time) to be $25 million,and then $22 to $23 million annually thereafter to maintain the registration system.

On page 119, then-IRS Commissioner Sheldon S. Cohen discusses "the effect of recent Supreme Court decisions concerned with registration and the constitutional right against self-incrimination," referring to Haynes vs. United States, 390 U.S. 85; Marchetti vs. United States, 390 U.S. 39; and Rossi vs. United States, 390 U.S. 62, "all decided on January 29, 1968." He discusses the intended effects of a amnesty period on pages 122. Of interest is a section-by section analysis of proposed amendments to the National Firearms Act; the $200 transfer tax would be increased to $400, and the $5 transfer tax to $20; and the making tax from $200 to $400. The legislation included provision for a 30-day amnesty period, and a new provision to remove collector's items (other than a machine gun or destructive device) from the NFA; and a discussion of the intentions of the provision to preclude use of registration information in criminal prosecutions (see pages 130 to 142). The section-by-section analysis is part of the legislative history of the National Firearms Act of 1968, also known as Title II of the Gun Control Act of 1968. Because courts look to the legislative history when confronted with difficulties or ambiguities in statutory interpretation, these materials are important and not to be overlooked, because they are often a definitive method of determining Congressional intent.

There is a brief discussion on page 626 of NFA amendments Sen. Hruska offered to attach to other legislation. The discussion also notes that that Sen. Hruska had introduced such legislation for each of the preceding four years.

Commissioner Cohen further discusses the NFA on pages 658 to 663; of particular interest is his observation that Treasury "had been averaging . . . about 60 to 70 prosecutions per month" for NFA violations. Since the Haynes decision, he said, they were "down to about something in excess of 40 per month. So we are talkign about 35 to 40 percent in the area of prosections," indicating that the invalidation of the NFA registration requirement did not halt prosecutions under the NFA.

One of the most interesting historical discussions of firearms registration appears on pages 480 to 505, in Exhibit 61, better known as the Library of Congress study on (1) Firearm registrations in Belgium, Czechoslovakia, France and Norway preceding the German invasion; (2) The shortage of small artms in Great Britian after Dunkirk; (2) English translations of German statutes, decrees and other documents concerning firearms regulations in the occupied territories of Belgium, Netherlands, Czechoslovakia, Luxemburg, Norway, Denmark, Poland and Yugoslavia. Included is a copy of the transmittal letter to then Sen. Thomas Dodd, conveying the translated Nazi gun control regulations that were used as a pattern for the regulations enacted under the Gun Control Act of 1968.

Finally, there is a study entitled "Federal Registration of Firearms: A Consideration of Two Constitutional Problems, Constitutional Basis, Self-Incrimination," by Johnny H. Killian, Legislative Attorney, American Law Division, Library of Congress Legislative Reference Service, June 17, 1968, on pages 739 to 765.
   

In 1968, then IRS Commissioner Sheldon S. Cohen testifies about amending the NFA
On June 26, and July 9, 1968, then IRS Commissioner Sheldon S. Cohen testified before Congress about proposed amendments to the National Firearms Act (NFA), which were later enacted in slightly different form as the National Firearms Act of 1968, more commonly referred to as Title II of the Gun Control Act of 1968. The AOW transfer tax was proposed to be changed from $5 to $20. During 1965 firearms act hearings, the Treasury Department proposed a change in the "any other weapon" transfer tax from $5 to $10, and a change from $200 to $400 for the transfer of other NFA firearms; however, neither change was made and the transfer taxes remain $5 and $200 for an "any other weapon" and "firearm," respectively. As in the 1965 hearings, a 30-day registration period is proposed. On page 135 is a brief discussion of NFA firearms that have special interest to collectors, which was used to implement the "collector's item" provision by which NFA firearms (with the exception of a machine gun or a destructive device) may be administratively removed from the NFA because they are unlikely to be used as weapons. On page 138 is a discussion of Section 5848 of Title 53, which was a new provision designed to restrict the use of information or evidence "required to be submitted or retained by a natural person" to comply with the NFA or its implementing regulations. Section 5848 was designed more specifically to "overcome the serious problems in the administration and enforcement of the National Firearms Act created by the decisions of the Supreme Court in the Grosso v. United States, 390 U.S. 62; Marchetti v. United States, 390 U.S. 39; and Haynes v. United States, 380 U.S. 85, cases." Also of interest is Commissioner Cohen's testimony on pages 661-662 about the effects on enforcement of the NFA by the Haynes decision, which invalidated the registration requirement because it conflicted with the 5th Amendment: "We had been averaging, under the national act, about 60 to 70 prosecutions per month for national act violations. Since the first of the year, when the Haynes decision was rendered, we are down to about something in excess of 40 a month. So we are talking about 35 to 40 percent in the area of prosecutions under Haynes. And, therefore . . . I would like to see this amendment to the National Act passed at the earliest practical moment." This may be the only known public record of the impact of invalidating the NFA's firearm registration requirement on federal law enforcement, and is significant because it refutes contentions by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), that a new amnesty period would suspend enforcement of the entire NFA. This hearing may be cited as "Federal Firearms Legislation," Hearings before the Subcommittee to Investigate Juvenile Delinquency, Committee on the Judiciary, United States Senate. 90th Congress, 2nd Session, Pursuant to S. Res. 240, 90th Congress. June 26, 27, 28 and July 8, 9 and 10, 1968. Washington, D.C.: U.S. Government Printing Office, 1968.
   
Senate Report No. 1866, which includes proposed amendments to the NFA in 1966
While this report is not devoted mainly to NFA issues, it contains important legislative history that influenced the Gun Control Act of 1968 as well as the National Firearms Act of 1968, more commonly known as Title II of the GCA. Legislative history is important because it discloses (1) evidence if any, for Congressional "findings" which often accompany enacted legislation, and (2) clarifications of intent of the purpose of the legislation. Of notable interest is the Congressional finding on page 7: "While destructive devices are not a substantial factor in the commission of serious crimes (only a handful of cases were made known to the committee in which these weapons were actually used in the commission of the 86,000 firearms crimes committed in 1965), neither are there any significant sporting purposes for which they are suited." The report further states: "Both Senators [Thomas J.] Dodd and [Roman] Hruska have introduced bills to bring destructive devices within the scope of the National Firearms Act. These bills are pending in the Senate Committee on Finance. These bills should be given early consideration." A brief discussion of destructive devices appears on page 10. Amendments to the NFA were also proposed in other legislation discussed here; for example, to further restrict the importation of NFA firearms, in "Individual Views of" then-Senators Thomas J. Dodd, Birch Bayh, Edward M. Kennedy, Joseph D. Tydings, Hiram L. Fong, Jacob K. Javits, George A. Smathers, and Edward V. Long (see pages 50-51). On page 90, it was noted: "One particularly disturbing facet of the traffic in military surplus firearms involves the importation of antitank guns, bazookas, mortars, and similar larger caliber weapons. One importer told the subcommittee that he alone had imported over 4,000 such weapons. These firearms have not been imported for national defense purposes, but for indiscriminate sale to anyone with the purchase price, including lawless elements."
   
Senate Report No. 1501, legislative history of Gun Control Act and National Firearms Act of 1968
Among the few sources of legislative history for the 1968 amendments to the National Firearms Act of 1934, enacted under Title II of the Gun Control Act of 1968, is Senate Report No. 1501, which discusses the Senate's version of the legislation. It is often not well understood, but the legislative name of Title II is the National Firearms Act of 1968, as shown on page 52. Indeed, Section 5841(d) states: "Firearms registered on effective date of this Act.- A person shown as possessing a firearm by the records maintained by the Secretary or his delegate pursuant to the National Firearms Act in force on the day immediately prior to the effective date of the National Firearms Act of 1968 shall be considered to have registered under this section the firearms in his possession which are disclosed by that record as being in his possession." This provision of the NFA was key in enabling Ken Crane to obtain a DEWAT that ATF contended was not properly registered to a decedent whose widow wanted to sell the firearms; click here and here to read about the case.

Amendments to the NFA are listed on pages 8-20, summarized on page 26, and there is a section-by-section analysis on pages 40-53. Of particular interest is Section 207(b), which established the 30-day amnesty period from November 2, 1968, to December 1, 1968, and Section 207(d), which authorized the Secretary of the Treasury (now the Attorney General, following ATF's transfer to the Department of Justice in 2003) unlimited numbers of future amnesty periods not to exceed 90 days per amnesty period, provided that the Attorney General publish notice of his intention to do so in the Federal Register. There has often been confusion and misunderstanding about the 1968 amnesty provision, which some persons incorrectly believe should have been 90 days; however, the discussion on page 53 makes clear this was never the case. The Congress intended the amnesty period to provide complete registration, stating that "30 days from the effective date of section 201 of title II every firearm in the United States should be registered to the person possessing the firearm" (see page 43). This document may be cited as Senate Report No. 1501, Calendar No. 1486, 90th Congress, 2nd Session, Gun Control Act of 1968. Report together with Individual Views to accompany S. 3633.
   

In June 1968, President Lyndon B. Johnson calls for national registration of all firearms
On June 24, 1968, then-President Lyndon B. Johnson urged the Congress to enact legislation to require "the national registration of every gun in America," and "that every individual in this country be required to obtain a license before he is entrusted with a gun." President Johnson proposed to establish minimum Federal licensing standards, and to impose Federal requirements upon states that failed to enact legislation that would equal or exceed the Federal standards. Interestingly, this call for legislation was made to apply to rifles and shotguns, because legislation that restricted handguns had just been passed as part of the Omnibus Crime Control and Safe Streets Act of 1968 (Public law 90-351, June 19, 1968). The Safe Streets Act prohibited interstate trade in handguns, and increased the minimum age for purchasing a handgun to 21. This legislation was soon overshadowed by the Gun Control Act of 1968 (Public Law 90-618, October 22, 1968) , which enacted broad regulations and further restricted firearms controlled by the National Firearms Act (NFA) of 1934. The new restrictions on NFA firearms were enacted by the National Firearms Act of 1968, better known as Title II of the Gun Control Act of 1968, and became effective November 1, 1968. As a historical note, H.R. 420 (Veterans' Heritage Firearms Act of 2011), which would provide a limited amnesty for certain NFA firearms for certain veterans and their lawful heirs, winds the legislative clock back to October 31, 1968, as the cutoff date for eligibility of certain firearms to qualify for this proposed amnesty. The October 31, 1968, date was consciously chosen to avoid any conflict with provisions of the Gun Control Act of 1968; in particular, with Title II, which became effective November 1, 1968. Thus, what may seem like irrelevant legislative history can, and does, make a difference in current legislation.
   
H.R. Report No. 1956 -- Conference Report to accompany H.R. 17735
This Conference Report reproduces the Gun Control Act of 1968, and explains how this legislation was reconciled between versions passed by the House of Representatives and the Senate. The NFA amendments are listed on pages 14-24, and legislative history and discussion of them appears on pages 34-35.
   
H.R. Report No. 1577 -- Report to accompany H.R. 17735
This Report explains amendments to the H.R. 17735, following its passage by the House of Representatives, and how the amendments were incorporated into the legislation. H.R. 17735 was introduced on June 10, 1968, at the request of the Department of Justice, and was designed to strengthen the firearms provisions enacted in the Omnibus Crime Control and Safe Streets Act of 1968 (Public law 90-351, June 19, 1968).
   
 Firearm Owners Protection Act of 1986: Hearings, Legislative History, and related documents
In 1984, Congress considered legislation to ban armor-piercing ammunition; then-ATF Director Stephen Higgins gave astonishingly neutral testimony on the private ownership of NFA firearms
In 1984, the Congress considered legislation to ban armor-piercing ("cop killer") ammunition, additional controls on silencer parts, and examined the availability of machine guns to street criminals. These hearings reproduce several proposed bills to ban armor-piercing ammunition; interestingly, both ATF and the NRA advocated controls that were less strict than some of those proposed. In fact, Robert E. Powis,Deputy Assistant Secretary for Enforcement, Department of the Treasury, testified that "the legislative definition of armor-piercing bullets in [the proposed legislation] is imprecise and results in a situation whereby manufacturers and importers will not be given adequate notice to decide which bullets are legal and which are prohibited" (page 65). The hearing is notable in that it contains one of the few statements on record by ATF that registered machine guns are not a significant law enforcement problem. After reviewing the usual problems presented by machine guns that have been illegally manufactured, then ATF-Director Stephen P. Higgins testified: "It is important to stress that up to this point I have been talking about unregistered, contraband weapons. I would now like to turn to the manner in which we regulated legally registered NFA weapons. These weapons are held by collectors and others; only rarely do they figure in violent crime. In this connection, the question of why an individual would want to possess a machine gun or, more often, a silencer, is often raised. We would suggest that ATF's interest is not in determining why a law-abiding individual wishes to possess a certain firearm or device, but rather in ensuring that such objects are not criminally misused. The regulatory scheme for dealing in or legally possessing NFA weapons and silencers is straightforward and provides safeguards which are adequate, in normal circumstances, to ensure that the firearms remain in the hands of law-abiding individuals" (page 111). Firearms Branch Technology Chief Edward M. Owen, Jr., discussed issues pertaining to the illegal manufacture of silencers (pages 131-135). These hearings may be cited as Armor Piercing Ammunition and the Criminal Misuse and Availability of Machine Guns and Silencers. Hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Represernatives, 98th Congress, 2nd Session, on H.R. 641 and Related Bills. Armor Piercing Ammunition and the Criminal Misuse and Availability of Machineguns and Silencers. May 17, 24 and June 27, 1984, Serial No. 153. Washington, D.C.: U.S. Government Printing Office, 1986.
   
1979 ATF oversight hearing provides initial basis for Firearm Owners' Protection Act
This 1979 oversight hearing is the first of 5 hearings cited by firearms attorney and author David T. Hardy as providing the legislative basis for the Firearm Owners' Protection Act (FOPA) of 1986 (click here to read his classic article, cited by the U.S. Supreme Court and eleven of the thirteen U.S. Circuit Courts of Appeals). Witness Neal Knox, Executive Director, National Rifle Association, testified: "Until recently, much of BATF's manpower was devoted to alcohol taxation enforcement. But with the increase in the price of sugar, moonshining has gone out of style and the BATF has concentrated its enforcement efforts upon lawful firearms uses. Rather than to go into the proper area of enforcement against criminal misuse, they have focused on arrest of the law-abiding citizen" (page 2). The 1979 hearing contains testimony by J. Curtis Earl, a Phoeniz, Arizona, machine gun dealer whom ATF accused of possessing 475 unregistered NFA firearms; however, ATF's records were in error, and Mr. Earl's impeccable records disclosed that all of the firearms in question were properly registered to him. The "conclusion" of the ATF investigation, which included a raid of Mr. Earl's premises, was: "The ATF prepared list of firearms registered to J. C. Earl was found to be inaccurate in that (1) 247 firearms listed had been transferred from him and (2) 21 firearms listed were not found in his records, nor on his premises. In the area we inventoried, all firearms found were on the ATF list. Also, in that there were 74 firearms on hand, per Earl's record, which had been inventoried on 6/9/77 and apparently not checked off on the list we cannot state with certainty that the ATF list represents a current physical inventory. Additional time spent to check the remaining firearms and to obtain an "actual inventory" (approximately 2 weeks for two inspectors) was felt not warranted under the circumstances: i.e., the time already put in by R.E. & C.E and the fact that the ATF list being used was incomplete and not concise and further work with the list would not produce an 'actual inventory.'" (page 40). Considering results of the 2007 Department of Justice Inspector General report on the NFRTR (click here to read it), one is tempted to say: "Plus c'est la meme chose, plus ca change" -- a French phrase, which is translated into English as: "The more things change, the more things stay the same." It's often used in a cynical sense to imply that although the outside surface appearance of things may appear to differ, underneath the system is basically the same. The hearings also disclose that Mr. Earl had been an informant for ATF, and he testified: " . . . most of the times I was acting as an informant it turns out I was informing on their own agents who were trying to set me up." (page 36).

These hearings may be cited as Oversight Hearings on Bureau of Alcohol, Tobacco and Firearms. Hearings before a Subcommittee of the Committee on Appropriations, United States Senate, 96th Congress, 1st Session. Special Hearing, Department of the Treasury, Nondepartmental Witnesses. Washington, D.C.: U.S. Government Printing Office, 1979; microfiche citation: CIS 1980 S181-2.
   

 Congressional reports on ATF, and related documents
In 2006, House Appropriations Committee urges ATF to stop harrassing FFLs with overzealous inspections
Reports of overzealous inspections by ATF of Federal Firearms Licensees (FFLs) who sell ordinary rifles, handguns and shotguns, also referred to as Title I firearms, have been repeated anecdotally for many years. In 2006, however, these complaints reached the House Committee on Appropriations, which declared: "The Committee has heard reports that ATF has pursued license revocations and denials against firearms dealers based on violations that consist largely of recordkeeping errors of various types that are unlikely to impede investigations or prosecution of individuals who use firearms in crime. The Committee urges ATF to examine its efforts on cases where licensees commit serious, material violations of known legal duties. The Committee urges ATF to examine its regulations, forms and recordkeeping requirements to prevent inadvertent violations by licensees." This report may be cited as State, Science, Justice, Commerce, and Related Agencies Appropriations Bill, Fiscal Year 2007. H.R. Report No. 109-520. Committee on Appropriations, House of Representatives, 109th Congress, 2nd Session. Washington, D.C.: U.S. Government Printing Office, 2006; the foregoing quoted material appears on page 28.
   
In 2007, House Appropriations Committee repeats its 2006 admonition to ATF to stop harrassing FFLs with overzealous inspections
Because the appropriations language in the House Committee on Appropriations report directing ATF to stop harrassing FFLs with overzealous inspections did not have the desired effect, the Committee repeated its 2006 admonition in 2007, as follows: "The Committee has heard reports that ATF has pursued license revocations and denials against firearms dealers based on violations that consist largely of recordkeeping errors of various types that are unlikely to impede investigations or prosecution of individuals who use firearms in crime. The Committee encourages ATF to consider lesser gradation of sanctions for recordkeeping errors." This report may be cited as Commerce, Science and Related Agencies Appropriations Bill, Fiscal Year 2008. H.R. Report No. 110-240. Committee on Appropriations, House of Representatives, 110th Congress, 1st Session. Washington, D.C.: U.S. Government Printing Office, 2007; the foregoing quoted material appears on page 63.
   
 Proposed NFA and other firearms legislation in the 110th Congress (2007-2008), and related documents
In 2007, Appropriations Committee criticizes ATF for levying harsh penalties for recordkeeping errors
When the Congress wants to influence or affect the operations of Executive Branch agencies, what is often called "report language" can be used. "Report language" has, by tradition and practice, the force of law, but is also (by law) something that cannot be deemed "legislation." Putting legislation into an Appropriations bill --- which is limited to telling agencies how to spend public funds appropriated for programs in their agencies --- is legally prohibited. It can take an expert to tell the difference, but there's no doubt that "report language" is effective. It has, among other things, prevented ATF from changing the definition of "Curios or relics" for more than a decade; in 2007, as shown, "The Committee has heard reports that ATF has pursued license revocations and denials against firearms dealers based on violations that consist largely of recordkeeping errors of various types that are unlikely to impede tracing investigations or prosection of individuals who use firearms in crimes. The Committee encourages ATF to consider lesser gradation of sanctions for recordkeeping errors." This report may be cited as Commerce, Justice, Science, and Related Agencies Appropriations Bill, 2008. 110th Congress, 1st Session, H.R. Report No. 110-240, House of Representatives. Washington, D.C.: U.S. Government Printing Office, 2007.
   
ATF Director testifies before House Judiciary Committee that registered NFA firearms are not a law enforcement problem
Stephen E. Higgins, BATF director, testifies before Congress in 1984 about the criminal misuse and availability of machineguns and silencers. The BATF director clearly states that in the BATF's experience, legally registered NFA weapons are not used in crimes. These hearings may be cited as "Armor Piercing Ammunition and the Criminal Misuse and Availablility of Machineguns and Silencers." Hearings Before the Subcommittee on Crime, Committee on the Judiciary, House of Representatives, 89th Congress, 2nd Session, on H.R. 641 and Related Bills, May 17, 24 and June 27, 1984. Serial No. 153. Washington, D.C.: U.S. Government Printing Office, 1986.
   
H.R. 1022, Assault Weapons Ban and Law Enforcement Protection Act of 2007
Introduced by Rep. Carolyn McCarthy (D-New York), with no co-sponsors, this proposed legisation would re-enact the so-called "assault weapon" ban.
   
H.R. 2726, Law Enforcement Officer Safety Act of 2007
Introduced by Rep. J. Randy Forbes (R-Virginia) and five co-sponsors, the Law Enforcement Officer Safety Act of 2007 to allow law enforcement officers who have "departed in good standing from law enforcement service with a public agency after completing an aggregate of 15 years of service with the agency" to carry concealed weapons in any state, with a few exceptions. The right to carry concealed would not include machine guns, any firearm silencer, or any destructive device. As the Ranking Member of the Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary, House of Representatives, Rep. Forbes is in a position to get a hearing on this proposed legislation, and the Committee on the Judiciary to vote on this proposed legislation.
   
S. 1331, Long-Range Sniper Rifle Safety Act of 2007
Introduced by Sen. Diane Feinstein (D-California) and ten co-sponsors, the Long-Range Sniper Rifle Safety Act of 2007 would require .50 MBG caliber sniper rifles to be defined and registered as "firearms" under the National Firearms Act (NFA). The act would also (1) apply to "any other rifle developed and manufactured after the date of enactment . . . regardless of caliber, if such rifle is capable of firing a projectile that attains a muzzle velocity of 12,000 foot-pounds or greater in any combination of bullet, propellent, case, or primer," and (2) amend the definition of "rifle" under Section 5845 of the NFA to include a rifle fired from "a bipod or other support." Registration of such rifles would occur under rules established by the Attorney General during a period to "end not later than 7 years after the date of enactment of this Act."
   
H.R. 1399, District of Columbia Personal Protection Act
On March 8, 2007, Representative Mike Ross (D-Arkansas) introduced legislation that would restore the right of citizens of the District of Columbia to own handguns, as well as to change the current definition of a "machine gun" (adopted in 1930, to include any firearm that is capable of firing 20 or rounds, including semiautomatic firearms such as a Ruger 10-22 carbine) to conform with the current definition under the National Firearms Act (NFA). A general prohibition on the ownership of NFA firearms would remain in force.
   
S. 1001, District of Columbia Personal Protection Act
On March 28, 2007, Senator Kay Bailey Hutchinson (R-Texas) introduced legislation that would restore the right of citizens of the District of Columbia to own handguns, as well as to change the current definition of a "machine gun" (adopted in 1930, to include any firearm that is capable of firing 20 or rounds, including semiautomatic firearms such as a Ruger 10-22 carbine) to conform with the current definition under the National Firearms Act (NFA). A general prohibition on the ownership of NFA firearms would remain in force.
   
Colloquy by Rep. Phil Gingrey (R-Georgia) on ATF firearms testing isssues
On July 25, 2007, Rep. Phil Gingrey (R-Georgia) proposed an amendment to the appropriations bill for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which would prohibit ATF from spending any money to pay the salaries of any ATF employees "to test and examine firearms without written and published testing standards." This prohibition, if enacted, would have halted all firearms testing by the Firearms Technology Branch as well as any other component of ATF. Rep. Gingrey withdrew the amendment after being assured that an underlying issue -- the mistreatment of U.S. firearms manufacturers -- would be further examined. Rep. Gingrey further noted that he introduced H.R. 1791 (Fairness in Firearm Testing Act) to address this problem (click here to read a copy of H.R. 1791). The source of this published colloquy may be cited as Congressional Record, Vol. 153, No. 120, July 25, 2007, pages H8481 to H8482.
   
H.R. 1791, Fairness in Firearm Testing Act
The Fairness in Firearm Testing Act was first introduced April 13, 2005, as H.R. 1603, because incompetent firearms testing by ATF in 2002 resulted in the unjustified federal prosecution of Mr. John William Glover, Jr., at a cost to the Government of more than $1.2 million, and of significant legal fees necessary for Mr. Glover to defend himself. In 2004, Mr. Glover's attorney, H. M. Whitesides, Jr., hired firearms expert Len Savage of Franklin, Georgia, who videotaped ATF technician Michael J. Cooney struggling to get the rifle to fire as a machine gun; but it won't---the gun was simply malfunctioning because its parts were broken. Mr. Cooney's technically incompetent examination resulted in the Assistant United States Attorney dropping the charges against Mr. Glover. Deeply troubled by what he had witnessed, Mr. Savage went public with the videotape, and presented the facts of the Glover case to his Congressional representative, the Honorable Phil Gingrey. Rep. Gingrey introduced H.R. 1603, which would prohibit ATF from introducing any firearm or ammunition as evidence in a criminal prosecution, unless a technical examination is videotaped, in addition to other legal safeguards. H.R. 1603 was not passed by the Congress, and Rep. Gingrey reintroduced this legislation in the 110th Congress as H.R. 1791. For further discussion, see Rep. Gingrey's July 26, 2007, colloquy, published in the Congressional Record, Vol. 153, No. 120, July 25, 2007, pages H8481 to H8482 (click here to read it).
   
H.R. 420, Veterans Heritage Firearms Act of 2011
H.R. 420, the Veterans Heritage Firearms Act of 2007, would allow veterans and their heirs to register historic firearms obtained while the United States was at war or during foreign conflicts (click here to read H.R. 420, which is identical to H.R. 2088, which was introduced in the 109th Congress but was not passed). While Rep. John Boozman (R-Arkansas) requested the Department of Justice Office of Inspector General (DOJ-OIG) to investigate ATF's administration of the World War II War Trophy program, as well as the 1950s era DEWAT program, and its impact on veterans and their heirs (click here to read the letter), so far the DOJ-OIG has not done so. A DOJ-OIG review of the National Firearms Registration and Transfer Record (NFRTR), published in June 2007, fails to mention this request (click here to read the report). While the 2007 report confirmed that ATF personnel have created errors in the NFRTR by not following procedures, and making inconsistent decisions regarding the registration and transfer of NFA firearms, the review did not include an audit of the NFRTR.
   
 Proposed NFA and other firearms legislation in the 109th Congress (2005-2006), and related documents
Attorney General Gonzales states, under oath, that ATF should honor NFA paperwork for registered machine guns
On April 6, 2006, Rep. Chris Cannon (R-Utah) told Attorney General Gonzales that "there have been significant questions about the accuracy of the National Firearms Act maintained by the ATF. The Gun Control Act of 1968 provided an amnesty whereby individuals could come forward and register weapons which were often war trophies that they got from their parents who fought overseas." Rep. Cannon noted that a 1998 Inspector General report "found that the ATF contract employees had improperly destroyed NFA records adn ATF employees had not followed proper procedures during the registration. This bureaucratic mess has left many of my constituents with potentially illegal guns solely because of ATF mistakes," and asked: "Would you support legislation allowing collectors to re-register so they are in compliance with the law, especially if they have the appropriate paperwork? And would you agree that an individual should not be faced with prosecution or the loss of a valuable weapon because of ATF's negligence?" Attorney General Gonzales said he would look into the situation.

Interestingly, Chairman John Conyers then observed: "We'll follow up on this. It happens to be--I have just in my district many, many people who have this problem, and they have paperwork that came from the ATF, but it's ignored by--"

The response by Attorney General GONZALES: "That shouldn't be the case."

Rep. Cannon concluded: "Thank you. I appreciate your stating on the record that it should not be the case, and we'll follow up with that."

This exchange is on page 27 of "United States Department of Justice," Hearing before the Committee on the Judiciary, House of Representatives, 109th Congress, 2nd Session, April 6, 2006. Serial No. 109-137. Washington, D.C.: U.S. Government Printing Office, 2006.
   

"Clear and Present Danger," by Tom Diaz
It is no accident that the investigative television program "60 Minutes" has featured the .50 Caliber Sniper Rifle four (4) times during the past 6 months. On the heels of the last showing, the Violence Policy Center (VPC) of Washington, D.C., in July 2005 published a new report characterizing this firearm as an "imminent threat to national security." It was a letter by VPC to ATF that resulted in prohibitions against the importation of certain "nonsporting" firearms in 1989 under the administration of then-President George Herbert Walker Bush. As is typical of "investigative" efforts by biased, left-wing news media, and many nongovernmental organizations, may issues simply aren't addressed. Take only one issue: Neither "60 Minutes" nor VPC say anything about the fact that the NFRTR, in which they propose .50 Caliber Sniper Rifles be registered, continues to be inaccurate and incomplete. People who object to the VPC's and "60 Minutes" treatments of this and other issues, should immediately contact their Congressional representatives and express their concerns.
   
H.R. 654, 50 Caliber Sniper Rifle Reduction Act, introduced February 8, 2005
If enacted, H.R. 654 would "freeze" the existing supply of .50 Caliber Sniper Rifles as defined in the bill, along an identical regulatory scheme as machine guns under Section 922(o) of Title 18, United States Code, to those guns that already exist. No additional guns could be manufactured for sale to private citizens. H.R. 654 is more treacherous because while it grandfathers in existing guns regarding possession, it does NOT regarding transfers. In other words, the person who currently owns the .50 caliber gets to keep it, but it is illegal to transfer it. This means it would presumably be "voluntarily abandoned" to ATF upon the death of the owner. This legislation defines a "50 caliber sniper weapon" as "a rifle capable of firing a center-fire cartridge in 50 caliber, .50BMG caliber, any other variant of 50 caliber, or any metric equivalent of such calibers." H.R. 654 thus also includes such firearms as the Model 1886 Winchester Rifle in caliber .50-110, and would require their registration in the National Firearms Registration and Transfer Record.
   
H.R. 1603, Fairness in Firearm Testing Act, introduced April 13, 2005
The Fairness in Firearm Testing Act was introduced because incompetent firearms testing by ATF in 2002 resulted in the unjustified federal prosecution of Mr. John William Glover, Jr., at a cost to the Government of more than $1.2 million, and of significant legal fees necessary for Mr. Glover to defend himself. In 2004, Mr. Glover's attorney, H. M. Whitesides, Jr., hired firearms expert Len Savage of Franklin, Georgia, who videotaped ATF technician Michael J. Cooney struggling to get the rifle to fire as a machine gun; but it won't---the gun was simply malfunctioning because its parts were broken. Mr. Cooney's technically incompetent examination resulted in the Assistant United States Attorney dropping the charges against Mr. Glover. Deeply troubled by what he had witnessed, Mr. Savage went public with the videotape, and presented the facts of the Glover case to his Congressional representative, the Honorable Phil Gingrey. Rep. Gingrey introduced H.R. 1603, which would prohibit ATF from introducing any firearm or ammunition as evidence in a criminal prosecution, unless a technical examination is videotaped, in addition to other legal safeguards.
   
H.R. 1703, Second Amendment Protection Act of 2005, introduced April 19, 2005
This proposed legislation would eliminate the "sporting purposes" requirements that must be met by certain firearms under current law.
   
H.R. 2088, Veterans' Heritage Firearms Act of 2005, introduced May 4, 2005
Long-standing problems with the accuracy and completeness of the National Firearms Registration and Transfer Record (NFRTR), and flawed implementation of the 1968 amnesty period, led Rep. Jim Gibbons to first introduce this legislation in 2003, and again in 2004. It is historically significant because it is the only amnesty legislation that has been introduced in the Congress since 1968. H.R. 2088 would allow the registration of unregistered machine guns and certain other NFA firearms by a veteran who was "a member of the Armed Services and was stationed outside the United States," as well as the veteran's family members if the veteran is deceased, if the firearm was acquired before October 31, 1968. This legislation is different from existing law, under which unlimited numbers of amnesty periods of not more than 90 days each may be established by the Attorney General after publishing notice of his intention to do so in the Federal Register, because it singles out a defined class of people (certain veterans) to whom the amnesty would apply, a provision that does not exist under the current amnesty statute. The legal citation for the current amnesty statute is Section 207(d), Public Law 90-618, 82 Stat. 1213, 1236 (1968).
   
S. 935, Fifty Caliber Sniper Weapons Regulation Act of 2005, introduced April 28, 2005
Under S. 395, the definition of a .50 caliber sniper rifle is identical to that under H.R. 654, and would require their registration in the National Firearms Registration and Transfer Record (NFRTR). Unlike H.R. 654, S. 395 would continue to allow .50 caliber rifles to be manufactured, transferred and possessed without "freezing" the existing supply. Neither S. 395 nor H.R. 654 provide any legislative mechanism for registering unregistered .50 caliber rifles in the NFRTR; this is not an insignificant legal issue, because under existing law and ATF's regulations, unregistered NFA firearms can only be lawfully registered during an amnesty period established under Section 207(d) of the Gun Control Act of 1968.
   
In 1983, then-Senator Robert Dole proposed amending the NFA to established a "continuous" amnesty period
Robert E. Powis, Deputy Assistant Secretary of Enforcement in the Treasury Department responds to inquiries from Senator Dole in 1983 on S. 914, "A bill to protect firearms owners' constitutional rights, civil liberties, and rights to privacy." Senator Dole proposed allowing hold-harmless registration of unregistered NFA firearms or devices, as well as lifting the veil of secrecy regarding registration information. The language in the amendment is useful as discussions and debates about an amnesty period arise. Mr. Powis also stated that the 30-day amnesty period in 1968 had served its purpose, and thus unregistered NFA firearms could no longer be registered, contradicting the fact that ATF had registered thousands of NFA firearms after the 1968 amnesty period expired, as established in 1998 audits of the NFRTR by the Treasury Department Inspector General, and further documented by Eric M. Larson in his 2001 Congressional statement. These 1982 hearings may be cited as "The Federal Firearms Owner Protection Act." Hearing Before the Committee on the Judiciary, United States Senate, 98th Congress, 1st Session, on S. 914, October 4, 1984. Serial No. J-98-70. Washington, D.C.: U.S. Government Printing Office, 1984. For ATF's legal analysis of NFA documents containing "tax return" information, and the scope of information that may be released as well as withheld, click here. This document may be cited as "Memorandum from Marvin J. Dessler, Chief Counsel, to the ATF Director dated August 18, 1980, bearing symbols CC-28,778 RMT and numbered 22889."
ATF Director testifies before House Judiciary Committee that registered NFA firearms are not a law enforcement problem
Stephen E. Higgins, BATF director, testifies before Congress in 1984 about the criminal misuse and availability of machineguns and silencers. The BATF director clearly states that in the BATF's experience, legally registered NFA weapons are not used in crimes. These hearings may be cited as "Armor Piercing Ammunition and the Criminal Misuse and Availablility of Machineguns and Silencers." Hearings Before the Subcommittee on Crime, Committee on the Judiciary, House of Representatives, 89th Congress, 2nd Session, on H.R. 641 and Related Bills, May 17, 24 and June 27, 1984. Serial No. 153. Washington, D.C.: U.S. Government Printing Office, 1986.
   
Legislative Hearing on H.R. 1384, the "Firearm Commerce Modernization Act" and H.R. 1415, the "NICS Improvement Act of 2005"
On May 3, 2006, the Subcommittee on Crime, Terrorism and Homeland Security, Committee on the Judiciary, House of Representatives, held a hearing on removing restrictions on the interstate sale of firearms; update existing laws governing interstate firearms sales and ensure all states are providing complete, accurate and updated data to the NICS (National Instant Criminal Background Check System) system.
   
Legislative Hearing on H.R. 5005, the "Firearms Corrections and Improvements Act"
On May 28, 2006, the Subcommittee on Crime, Terrorism and Homeland Security, Committee on the Judiciary, House of Representatives, held a hearing on H.R. 5005, which was introduced to implement "a number of common-sense provisions which clarify, update and eliminate obsolete language in the gun laws." These include eliminating "double reporting requirements." The witnesses are Michael R. Bloomberg, Mayor, New York City; Richard Gardiner, Esq., a firearms law practitioner, Fairfax, Virginia; and Audrey Stucko, Deputy Assistant Director for Enforcement Programs and Services at the Bureau of Alcohol, Tobacco, Firearms and Explosives.
   
Oversight hearing on Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE): Gun Show Enforcement (Part I and II)
On February 15 and February 28, 2006, the Subcommittee on Crime, Terrorism and Homeland Security, Committee on the Judiciary, House of Representatives, held a hearing on ATF enforcement activities at gun shows; and, specifically, its activities at a Richmond, Virginia, gun show. The latter included "uniformed law enforcement [visiting] the address of every purchaser form Richmond or Henrico County attempting to purchase a gun and ask for a full description of the individual attempting to purchase the firearm, where he or she worked, how many firearms the potential purchaser owned, and in some instances, if there were any concerns about the person in question purchasing the firearm. If no one was at the listed address, a neighbor was interviewed."
   
House Report 109-672 - Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) Modernization and Reform Act of 2006.
H.R. 5092, a bill "To modernize and reform the Bureau of Alcohol, Tobacco, Firearms, and Explosives," was passed by the House of Representatives on September 26, 2006, by 277 yeas to 131 nays. Shortly after its receipt in the Senate, Senator Dianne Feinstein (D-California) placed a "hold" on the bill, which prevented the Senate from considering it. This report is important because (1) it constitutes legislative history that establishes the need for the proposed legislation. Bills are rarely enacted without Congressional hearings, particularly in the case of gun control or reform legislation, and (2) further legislative attempts to address the issues raised in H.R. 5092 will rely in some part on this report and the background hearings. Importantly, this report formally requested the Department of Justice Inspector General to "conduct a review of the operations of the Bureau of Alcohol, Tobacco, Firearms and Explosives, for the purpose of assessing the manner in which the Bureau conducts the gun show enforcement program and blanket residency checks of prospective and actual firearms purchasers." This legislation requires the Inspector General to submit a written report to the House and Senate Committee on the Judiciary not later than September 21, 2007. The IG is currently doing this review.
   
 2006 ATF Oversight Hearings before the Subcommittee on Crime, Terrorism and Homeland Security
Legislative Hearing on H.R. 1384, the "Firearm Commerce Modernization Act" and H.R. 1415, the "NICS Improvement Act of 2005"
On May 3, 2006, the Subcommittee on Crime, Terrorism and Homeland Security, Committee on the Judiciary, House of Representatives, held a hearing on removing restrictions on the interstate sale of firearms; update existing laws governing interstate firearms sales and ensure all states are providing complete, accurate and updated data to the NICS (National Instant Criminal Background Check System) system.
   
Legislative Hearing on H.R. 5005, the "Firearms Corrections and Improvements Act"
On May 28, 2006, the Subcommittee on Crime, Terrorism and Homeland Security, Committee on the Judiciary, House of Representatives, held a hearing on H.R. 5005, which was introduced to implement "a number of common-sense provisions which clarify, update and eliminate obsolete language in the gun laws." These include eliminating "double reporting requirements." The witnesses are Michael R. Bloomberg, Mayor, New York City; Richard Gardiner, Esq., a firearms law practitioner, Fairfax, Virginia; and Audrey Stucko, Deputy Assistant Director for Enforcement Programs and Services at the Bureau of Alcohol, Tobacco, Firearms and Explosives.
   
Oversight hearing on Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE): Gun Show Enforcement (Part I and II)
On February 15 and February 28, 2006, the Subcommittee on Crime, Terrorism and Homeland Security, Committee on the Judiciary, House of Representatives, held a hearing on ATF enforcement activities at gun shows; and, specifically, its activities at a Richmond, Virginia, gun show. The latter included "uniformed law enforcement [visiting] the address of every purchaser form Richmond or Henrico County attempting to purchase a gun and ask for a full description of the individual attempting to purchase the firearm, where he or she worked, how many firearms the potential purchaser owned, and in some instances, if there were any concerns about the person in question purchasing the firearm. If no one was at the listed address, a neighbor was interviewed."
   
ATF conduct at a Richmond, Virginia, gun show, August 13-15, 2005
It may be several months before the Hearing Record of the Oversight Hearing on ATF regarding gun show enforcement, held February 15, 2006, is published. In particular, the hearing provided a forum for various persons to discuss their concerns about ATF's conduct during the Richmond Gun Show, August 13-15, 2005. In the interest of sharing information, statements of the witnesses have been made available and are being posted here, having been copied from those currently posted online at www.ar15.com, courtesy of www.ar15.com and Team Member chapperjoe, who obtained these transcripts of what was said at the hearing. The full Hearing Record will contain statements by Subcommittee Chairman Howard Coble, questions or statements by other Members of the Subcommittee, as formal written statements by the witnesses, as well as other information the Subcommittee Chairman deems pertinent. In the interest of the timely sharing of this information with the firearms community, NFAOA is posting this testimony on the www.nfaoa.org web site as well.

ATF has apparently been scheduled to provide rebuttal testimony on February 28, 2006, which will be limited to addressing concerns and allegations regarding the activities of ATF at the Richmond Gun Show on August 13-14, 2005.

The first hearing (2/15/06) by the Subcommittee on Crime, Terrorism and Homeland Security into the BATFE abuses at the Richmond Gun Show can be seen and heard in its entirety at house.gov

It is also worthwhile to read the chairman's written statement as well as those provided by the witnesses.
   

 Congressional testimonies and statements of Eric M. Larson, 1996 to 2001, and related documents
1998 Treasury OIG critique
In this unpublished document prepared for Rep. Pete Sessions, author Eric M. Larson uses Tom Busey's remarks about the NFRTR as the starting point for what became the basis for his Congressional testimonies and statements about the NFRTR being inaccurate and incomplete. The evidence Mr. Larson uses includes NFRTR transaction data, statements by other ATF personnel about the kinds of errors in the NFRTR, and the empirical basis, methods, and theoretical assumptions used in his evaluation and analysis. Therefore, anyone is free to replicate his findings, as well as to perform different analyses involving other data and assumptions. In 1997, ATF stopped providing the types of NFRTR transaction statistics that Mr. Larson used as an evidentiary basis for criticizing ATF's administration of the NFA and management of the NFRTR. Note that this 1999 analysis was completed before the Treasury OIG audit work papers were available. This critique should be referenced as "Work Papers on Errors in the National Firearms Registration and Transfer Record, and Other Issues Regarding the Bureau of Alcohol, Tobacco and Firearms," by Eric M. Larson. Prepared for The Honorable Pete Sessions, House of Representatives, Washington, D.C., April 2, 1999 (unpublished). Also note that virtually all of the evidence Mr. Larson uses came from ATF itself; that is, the data and/or documents he cites were created by ATF. These include documents published by the Government, as well as obtained by the Freedom of Information Act (FOIA) process.
   
NFRTR document package
Eric M. Larson's document package, "Congressional Concerns about the Accuracy and Completeness of the National Firearms Registration and Transfer Record (NFRTR) have not been fully addressed by the Treasury Department Inspector General or the Bureau of Alcohol, Tobacco, Firearms and Explosives," was compiled in January 2005. It is a collection of selected Congressional and other documents relevant to the accuracy and completeness of the NFRTR, including documentation of a followup audit initiated in 2002 by the Treasury Department Inspector General that was abandoned when ATF was transferred to the Department of Justice. The 2002 audit was supposed to have determined whether ATF complied with recommendations for improving the accuracy and completeness of the NFRTR, as stated in the 1998 audit reports. To read a copy of the October 1998 audit report, click here; to read a copy of the December 1998 audit report, click here; to read a copy of Eric M. Larson's unpublished critique of these audit reports, click here.
   
1996 Testimony
"Statement on 'Curio or Relic' Firearms Manufactured in or Before 1934 Which Are Also Classified in the 'Any Other Weapon' Category Under the National Firearms Act (NFA) of 1934, as Amended," by Eric M. Larson. In TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1997. 104th Congress, 2nd Session. PART 5: TESTIMONY OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1996, pages 35-166. Includes "Insights with Eric M. Larson," by staff of CADA Gun Journal, June 1995, pages 168-170; "Misapplying Federal Gun Control: The Case of the H&R Handy-Gun," by Eric M. Larson, pages 171-179; Transcript of "Roll Call Training, 10/95, Tom Busey," with remarks by Gary N. Schaible, pages 182-205; copy of Davis vs. Erdman (607 F.2d 917 (1979)), in which the ATF Director's office "admitted in writing that some of those reasons [for denying Ken Davis' petition to remove a knife-pistol from purview of the NFA as a collector's item] were false or without factual basis," and the Court ordered ATF to remove the knife-pistol from purview of the NFA, pages 206-209; various letters from ATF regarding the smooth bore H&R Handy-Gun, pages 212-244; and Appeal No. 82-8546, United States Court of Appeals for the 11th Circuit in United States vs. One Remington .12 Gauge Shotgun . . . [and] Marvin Clark Bell, November 1982, in which an Assistant United States Attorney presents a comprehensive legal argument that a sawed-off shotgun and an "Any Other Weapon" are defined and regulated differently under the NFA, and that the Congress intended for firearms in the "Any Other Weapon" category to be given "special and more lenient treatment" than other types of NFA firearms, pages 245-274.
   
1997 Testimony
"Statement on Proposed Removal of Certain Firearms Manufactured in the United States in or Before 1934 from Purview of the National Firearms Act (NFA) of 1934, as Amended, and Their Reclassification as 'Firearms' as Defined in Title 18, U.S.C., Chapter 44," by Eric M. Larson. In TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1998. 105th Congress, 1st Session. PART 5: TESTIMONY OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1997, pages 16-40. Includes additional testimony entitled, "Errors in the National Firearms Registration and Transfer Record: A New Amnesty Period May Be Required to Correct Them," by Eric M. Larson, pages 41-139, which also contains various examples of ATF-created computer printouts of errors in the NFRTR.
   
1998 Testimony
"Statement on Proposed Removal of the National Firearms Registration and Transfer Record from the Custody of the Bureau of Alcohol, Tobacco and Firearms and its Proposed Relocation to the Department of Justice," by Eric M. Larson. In TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 1999. 105th Congress, 2nd Session. PART 5: TESTIMONY OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1998, pages 25-31. Includes statement by Noel Napolilli, pages 33-39; "Institutional Perjury," by James H. Jeffries III, pages 40-42; "What Happens When BATF Breaks the Law?," by Ned Schwing; "How Firearm Registration Abuse & the 'Essential Operational Mechanism' of Guns May Adversely Affect Gun Collectors," by Eric M. Larson, pages 47-50; "Smoothbore Pistols Firing Shotgun Shells," by Eric M. Larson, pages 50-54; February 1969 Memorandum in which the ATF Director determines that the .45/.410 Thompson Contender is not an NFA firearm, page 55; record of a June 1969 meeting at Thompson/Center Arms in which ATF threatens to classify the .45/.410 as an NFA firearm if production of the .45/.410 barrel is not halted, pages 56-62; record of an ATF internal investigation of the NFRTR in 1997 by ATF Special Agent Jeff Groh, with comments by Eric M. Larson, pages 67-129; "Statement on Efforts by the Bureau of Alcohol, Tobacco and Firearms to Cover Up Errors in the National Firearms Registration and Transfer Record and to Illegally Withhold Exculpatory Evidence in Criminal Prosecutions," by John Daniel LeaSure, pages 147-157; formal complaints by David N. Montague, Esq. (Mr. LeaSure's attorney), pages 158-169; "Roll Call Training, 10/95, Tom Busey," pages 173-194; and transcript of United States vs. John Daniel LeaSure, Criminal No. 4:94cr54, Newport News Virginia, May 21, 1996, pages 195-276, in which U.S. District Judge John A. Mackenzie dismisses convictions for nonregistration of firearms under the NFA because ATF withheld exculpatory evidence.
   
1999 Statement
"Violating the Rule of Law: The Bureau of Alcohol, Tobacco and Firearms Has Not Corrected Errors in the National Firearms Registration and Transfer Record, Which Unjustly Subjects Law-Abiding Citizens to Imprisonment, Fines, and Confiscation of Their Historic Firearms," by Eric M. Larson. In TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 2000. 106th Congress, 1st Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 1999, pages 64-87. Includes statements by Capt. Monty Mendenhall (pages 74-81) and Noel Napolilli (pages 82-87) about ATF losing their NFA paperwork; "Our Hobby at the Crossroads: More Protections are Needed for Historical Firearms and for Persons who Collect and Deal in Them," by John Picchietti, President, Collector Arms Dealers Association (pages 88-92); and draft legislation to establish a Civilian Commission on Historical Firearms and an Historical Firearms Data Center (pages 93-106).
   
2000 Statement
"The Bureau of Alcohol, Tobacco and Firearms' Mismanagement of the National Firearms Registration and Transfer Record: Disregarding the Treasury Department Inspector General's Audit Findings," by Eric M. Larson. In TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 2001. 106th Congress, 2nd Session. PART 5: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 2000, pages 6-31. Includes article "Dangers of Secret Federal Gun Registration: What Happens When Government Creates Errors and Refuses to Correct Them," by Eric M. Larson, pages 28-31.
   
2001 Statement
"A New Amnesty Period is the Only Viable Solution to Correct Errors in ATF's National Firearms Registration and Transfer Record," by Eric M. Larson. In TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL YEAR 2002. 107th Congress, 1st Session. PART 3: STATEMENTS OF MEMBERS OF CONGRESS AND OTHER INTERESTED INDIVIDUALS AND ORGANIZATIONS. Washington, D.C.: U.S. Government Printing Office, 2001, pages 6-14. Includes letter to Subcommittee Chairman Ernest J. Istook, Jr. from Stephen P. Halbrook, Esq., dated February 14, 2001, stating in part: "Unless and until BATF can conform its records to acceptable standards of accuracy, the Subcommittee should consider legislation to prohibit use of the NFRTR database in civil and criminal proceedings" (pages 15-16); "Amnesty Guidelines" in IRS Manual Supplement 76G-41 dated April 16, 1969, by ATF Director Harold A. Serr (pages 19-20); Memorandum by Thurman W. Darr, Chief, ATF Technical Services Division dated March 4, 1975, regarding proposed delinquent registration of firearms (pages 21-22); and letter to then-Subcommittee Chairman Jim Kolbe from Dr. Fritz J. Scheuren dated May 23, 2000, evaluating Treasury Department Inspector General audit reports on the NFRTR, and ATF's responses to Subcommittee questions (pages 23-26). Dr. Scheuren is currently the elected President of the American Statistical Association.
   
 Congressional Research Service (CRS) reports on the National Firearms Act and related issues
CRS Memorandum on Issues Regarding Data Accuracy, Completeness, and Reliability of the NFRTR
This November 28, 2005, Memorandum by William J. Krouse is the most comprehensive and current legislative and policy analysis of issues arising from questions about the accuracy, completeness and reliability of the National Firearms Registration and Transfer Record (NFRTR). Unlike too many people who don't take the time to read and analyze pertinent reports, Mr. Krouse has clearly presented the mixed bag of valuable work done by the Treasury Department Inspector General in documenting that there are serious errors in the NFRTR, as well as pointing out equally and perhaps more serious shortcomings of the IG's work. For example, while the IG raised questions about the accuracy and completeness of the NFRTR, "the Treasury IG, however, did not examine the legal issues regarding whether ATF searches of the NFRTR to determine whether NFA weapons were legally registered were accurate enough to support certifications in court during criminal prosecutions" (see page CRS-2). While the IG raised questions about the accuracy and completeness of the NFRTR, it pointedly declined to delve into the issue of whether criminal convictions based on the ATF's searches of the NFRTR are legally valid (that is, are subject to reasonable doubt because ATF may have failed to disclose information about the loss or destruction of NFA paperwork). This 21-page Memorandum identifies areas for potential legislative action, and critically examines various assumptions ATF has made in opposing the establishment of a new amnesty period to correct errors in the NFRTR.
   
CRS Memorandum on ATF machine gun testing and related issues
The lack of consistent standards and criteria for testing NFA firearms by the ATF's Firearms Technology Branch has long been known to the NFAOA community. This is summed up in an article by Len Savage (click here to read the article). Of vastly more interest to the community is a new Congressional Research Service (CRS) memorandum dated October 19, 2005, which CRS provided to Rep. Phil Gingrey (R-Georgia) and approximately 15 other Congressional requestors, documenting that ATF has no manual of procedures it uses to determine whether firearms are machine guns, and discusses related issues such as "ATF Letter Ruling" documents and ATF's practices in responding to Freedom of Information Act (FOIA) requests involving machine guns. To read the CRS Memorandum, click here.
   
Long-Range Fifty Caliber Rifles: Should They Be More Strictly Regulated?
As the title of this document states, this CRS report summarizes the policy and legislative context for more strictly regulating .50 caliber rifles. S. 935 would require the rifles to be registered under the National Firearms Act (NFA); H.R. 653 would also require such registration, freeze the existing number, and prohibit their future transfer to other civilians. Thus, as author William J. Krouse notes, H.R. 635 "would eventually eliminate these rifles altogether from the civilian gun stock." CRS works exclusively for the Congress, specializing in legislative history and policy issues. No one except a Member of Congress may request a CRS report. While CRS report distribution is limited to Members of Congress, there are no restrictions on their subsequent distribution to anyone.
   
CRS report on "Demilitarization of Significant Military Equipment"
There was recently offered for sale on eBay a "deactivated" World War II Thompson Submachine Gun the seller advertised as such, noting it had been "saw cut" after being imported "this summer" (in 2006). Inspection of the photographs disclosed that the Thompson was not rendered inoperable by published ATF standards; the saw cuts appeared to have been made by a band saw, with a minimum amount of metal removed---certainly significantly less than the 1/4" required to have been removed by torch cuts per ATF standards. It seems unlikely that the Thompson had been legally imported in that condition "this summer" as the seller alleged. While it sold to an apparently willing buyer for roughly $1,500, the Thompson appeared to be contraband. This CRS report discusses problems surrounding the demilitarization of significant military equipment, including NFA firearms and devices, and thus has broad relevance to the illegal possession of such materiel by civilians and related issues.
   
CRS Report on Gun Control Legislation, updated October 5, 2007
In this summary of gun control issues being considered in the 110th Congress, CRS specialist William Krouse includes a reprise of legislation action in the 109th Congress. Specialist Krouse notes: "On June 13, 2007, the House passed the NICS Improvement Amendments Act (H.R. 2640). This bill would provide incentives to states to update disqualifying records that are accessed by the Brady background check system. On August 2, 2007, the Senate Judiciary Committee ordered reported a school safety bill that included similar provisions. Congress has also reconsidered funding limitations pleaced on the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which are often referred to as the "Tiahrt amendment" for their sponsor in the FY2004 appropriations cycle, Representative Todd Tiahrt. In full committee markup, Senator Richard Shelby amended the FY2008 Commerce-Justice-Science (CJS) appropriations bill (S. 1745) with similar, but modified, limitations. Similar limitations have also been included in the House-passed CJS appropriations bill (H.R. 3093)." This use of appropriations as a mechanism for achieving operational changes in ATF practices has become routine. This August 20, 2007, update does not include the June 2007 report by the Department of Justice Office of Inspector General on the National Firearms Registration and Transfer Record (NFRTR); click here to read a copy of the DOJ-OIG report.