Obama Executive Order Cannot Legally
Enact Rifle-Reporting Law
BATFE Gun-Smuggling Scandal Blowing Up in Their Face
Attempt to divert attention from criminal acts
falls on deaf ears.
FOR IMMEDIATE RELEASE
FOR IMMEDIATE RELEASE
JULY 13, 2011
Contact: Felicity Bower
Full contact info at end
Obama Executive Order Cannot Legally Enact Rifle-Reporting Law
Effort to Bypass Congress Is Illegitimate, Experts Say
Similar Laws Have Required Bills, Open Debate, Recorded Votes
News Media Asleep at the Wheel, Reporting Without Questioning
Firearm Owners Protection Act Bans Such Proposals Altogether
Congress Already Rejected Reporting for Long Guns
Equal Protection Under the Law Defeated by Four-State Proposal
Agents Expected to Obey an Illegal Order
If this stands up, limits on power fall apart --
Is that the true goal of Project Gunrunner?
The effort by the Obama administration to establish new gun law by executive order is not a legal method for enacting law in the United States, according to Alan Korwin, a national expert on gun law and author of nine books on the subject. Other experts agree that such a measure requires an act of Congress, and cannot legitimately be implemented by executive order, as Mr. Obama is attempting to do.
"We already have rapid-reporting requirements for multiple firearm sales, for handguns," Mr. Korwin notes, "and this required Congress to draft and enact a statute, which became federal law 18 U.S.C. §923(g). It's not legal to create another similar law for long guns without Congress," Korwin says.
When that law was changed to allow reporting of multiple handgun sales to local authorities, in addition to federal officials, that also required federal law, which was passed as part of the Brady bill. Congress had an opportunity to include long guns in those reporting requirements, and rejected it. Congress is the only entity with legitimate power to change that, Korwin and other experts say.
According to knowledgeable observers, a firearms bill like this would not make it through Congress, since the House is firmly in pro-gun-rights Republican hands. This may explain Obama's effort to sidestep Congress and attempt to enact a gun law by decree instead of due process and open transparent deliberation. "Mr. Obama knows such a bill would have no chance of passage in the current Congress. His attempt to avoid Congress is an affront to all Americans, regardless of where they stand on the gun-rights issue," said Larry Pratt, executive director of Gun Owners of America. "Apparently the president is a fan of former Clinton advisor Paul Begala's approach to government: "Stroke of the pen, law of the land. Kinda cool!"
A president who attempts to pass laws on his own is dangerous to the nation.
"If the administration can get away with this and enact new law without Congress, there is no practical limit on presidential exercise of power, a truly frightening development," says Philip Van Cleave, a civil-rights activist and president of the Virginia Citizens Defense League. "Even attempting to grab such power is a tyrannical act," Van Cleave says.
No justification or rational is known that would allow such action regarding rifle sales, when the essentially same law for handguns required a bill and proper passage. This goes even one step further than Obama's federal health care law, which then Speaker of the House Nancy Pelosi said we would have to pass to learn what's in it. That at least used Congress for an appearance of legitimacy, this bypasses Congress completely.
Equal treatment under the law would also be defeated by the move, since the attempt singles out dealers in only four states -- California, Arizona, New Mexico and Texas. One gun dealer, who refused to be identified, pointed out that this will force Mexico's deadly vicious drug cartels to make their illegal straw purchases in the other 46 states.
Nevada, Utah, Colorado and Oklahoma are the next closest states to the Mexican border, and could conceivably see an uptick in the sales Obama claims he is trying to thwart. Those states would be under no obligation to report multiple sales, though licensed dealers are typically vigilant and report sales that seem suspicious, if for no other reason than to protect their licenses to operate.
"The whole scheme is preposterous," says Kim Grady, a board member and national coordinator for Second Amendment Sisters. "Federal agents were the ones smuggling guns into Mexico in the first place, to bolster the numbers Mr. Obama, Hillary Clinton and Eric Holder were loudly promoting to build support for more gun control -- even after their numbers were exposed as false," Ms. Grady notes. "The ATF-managed straw sales sales were repeatedly reported to ATF officials, who ignored the information. Now dealers will be required to do what they were already doing, to the rogue agency that ignored them? This has nothing to do with gun control, and everything to do with control." If a new law is needed, Grady said, it's one to imprison federal agents who cooperate in gun smuggling, not more paperwork for honest and conscientious licensed business people.
According to ATF, the new edict will generate 18,000 reports in a year. It is unknown where the staff and money to handle such a load will come from, or how the information will be used. FOPA specifically bans collecting this information in any sort of federal facility.
According to Charles Heller, the newly appointed executive director of Jews for the Preservation of Firearms Ownership, "The ultimate aim of all regulations like the one in this executive order, is to make it so difficult for private citizens to own and shoot a gun, that they no longer bother to do so. This is EXACTLY what the Declaration of Independence, whose anniversary we just celebrated, refers to as 'sending forth agents to eat out our substance.'"
Heller notes that, "In the recent Gunrunner debacle, the Obama administration attempted to pad the statistics of 'crime guns' going to Mexico from the U.S. This is a violation of several U.S. laws, committed by law enforcement agents who failed to refuse illegal orders. The solution is simple and straightforward -- disarm the agents and decertify the agency as a law enforcement organization. Remove their badges, and give them business cards like any other bureaucrats. Turn them from jack-boots into gumshoes."
According to published reports, Obama promised action on gun restrictions to long-time anti-rights activist Sarah Brady, saying they would come "under the radar," after he got things properly positioned. It defies imagination to suggest that Project Gunrunner, and the Fast and Furious smuggling crimes were just fronts that had nothing to do with padding the numbers, gun smuggling, or even building political support for gun control. "If that was just a smokescreen, all arranged so Mr. Obama could begin enacting gun law by decree instead of through Congress, now that would be one slick pre-planned political stratagem," said author Korwin, adding, "I can't believe he's that clever, but it sure looks like he's getting that result."
The NRA has promised a lawsuit to fight the administration's decree, about the only action short of impeachment that can be taken if a president acts outside the law. That case would be heard in federal courts, which operate under Obama's Justice Dept. and AG Eric Holder, which have in the past mysteriously dismissed cases they did not like. Voter intimidation by a black panther in Philadelphia, for example, disappeared, even though the club-wielding perp was caught on videotape.
As early as Dec. 17, 2010, the National Shooting Sports Foundation reported that an effort was underway to create rifle-reporting requirements:
"An editorial in today's Washington Post discussed the recent decision by ATF to require federally licensed firearms retailers along the Southwest border to report multiple sales, or other dispositions, of most semi-automatic rifles. Specifically this would impact semi-automatic rifles that are larger than .22 caliber, capable of accepting a detachable magazine and are purchased by the same individual within five consecutive business days.
"Though the Post supports this ill-advised proposal, it did acknowledge the legitimacy surrounding one of industry's objections:
"When reports of its plan surfaced, the administration came under immediate attack from the gun rights lobby. The National Shooting Sports Foundation, the firearms industry trade association, argued that the administration lacked the legal authority to demand data on rifles and shotguns. It has a point: While Congress authorized the ATF to collect information on handgun sales, it declined to extend the requirement to long guns. A court is likely to be asked to decide whether demand letters may be used to shake loose this information …"
NSSF continues to oppose multiple sales reporting of semi-automatic rifles. Such reporting requirements will actually make it more difficult for licensed retailers to help law enforcement as traffickers modify their illegal schemes to circumvent the reporting requirement. Traffickers will go further underground, hiring more people to buy their firearms. This will make it much harder for retailers to identify and report suspicious behavior to law enforcement.
NSSF would also like to remind all members of industry, sportsmen and gun owners to voice their concerns by doing the following:
1. -- Call the Office of Management and Budget, Office of Information and Regulation Affairs, Department of Justice, Desk Officer at (202) 395-6466.
2. -- E-mail Barbara A. Terrell, ATF, Firearms Industry Programs Branch at Barbara.Terrell@atf.gov
3. -- Call your Senators and Representative: United States Capitol Switchboard: 202-224-3121
The NSSF reports that, "According to ATF, the average age of a firearm recovered in the United States is 11 years old. In Mexico it's more than 14 years old. This demonstrates that criminals are not using new guns bought from retailers in the states."
Congress, when it enacted multiple sales reporting for handguns, could have required multiple sales of long guns -- it specifically chose not to.
The Washington Post reported on Dec. 17 of last year that, "The plan (to register rifles) by the Bureau of Alcohol, Tobacco, Firearms and Explosives revives a proposal that has languished at the Justice Department and in the Obama administration for several months, according to people with knowledge of the proposal... The idea of such a requirement is so controversial to many gun owners that administration officials proceeded cautiously for fear of provoking the National Rifle Association, sources said."
The paper quoted Ted Novin, a spokesman for the National Shooting Sports Foundation, who noted the timing after the election and said, "This is an ill-considered proposal and one that ATF does not have the legal authority to unilaterally impose."
The Post also quoted NRA chief lobbyist Chris Cox, "This administration does not have the guts to build a wall (on the border), but they do have the audacity to blame and register gun owners for Mexico's problems," Cox said. "NRA supports legitimate efforts to stop criminal activity, but we will not stand idle while our Second Amendment is sacrificed for politics."
The original idea, says the Post, was to label the operation as an emergency, and have ATF issue a "demand letter" to 8,500 dealers in the four border states requiring the new reports to a centralized federal facility.
When the NRA got wind of the idea back then, it warned its four million members in a "grassroots alert" that the administration might try to go around Congress to get such a plan enacted as an executive order or rule.
"Emergency approval would last six months, after which the requirement would end unless other action were taken, the draft states," according to the Post. That time is now up and Obama has seen fit to attempt to continue the operation, in defiance of law and with disregard for Congress.
From the Firearm Owners Protection Act
18 USC §926 Rules and regulations
"The Attorney General may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter...
(3)... No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act (1986) may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established."
When BATFE hatched this scheme, they told gun dealers in Arizona not to worry, everything was running according to plan. Dealers repeatedly informed BATFE of the criminal nature of the enterprise, but were ignored. Dealers were repeatedly assured by BATFE agents that they would not be charged or implicated in any wrongdoing. Even agents told their superiors this was a smuggling operation, and were told to "stand down," according to testimony before Congress.
Then BATFE turned on the dealers, and publicly denounced them for allowing smuggling operations. But the dealers had prepared for this. They had filed their concerns with the Dept. of Justice, and their lawyers, and showed BATFE to be blatantly lying about the program, and that accusations of criminal misconduct were false. BATFE was hugely embarrassed and backed off their campaign of attempted reputation destruction.
They then tried to claim it was actually just a bureaucratic snafu, and incompetence on their part, abandoning their bad-apple-gun-dealer ruse. A dozen guns, maybe. A few hundred, maybe. Nearly three thousand, out of two BATFE offices? Not a chance.
That lie was exposed when federal agents themselves came forward, in Congress, and denounced the campaign, calling it what it was -- an illegal, organized, government-run smuggling operation. Why would the government do such a thing?
An expert in Arizona's judiciary suggested to me it is just business as usual, in the standard M.O. for these Mexican non-government drug companies. Some official now has a small fortune in an offshore bank account, or cash in a mattress, paid off to look the other way and facilitate the operation. Most observers consider that unlikely, especially since the answer is more obvious and closer to home.
That answer lies in Mr. Obama's repeated attempts to build political capital to enact more gun-control disarmament laws. Along with Hillary Clinton and AG Eric Holder, he promoted the false notion that 90% of the drug-cartel guns come from U.S. gun stores. That bogus figure was quickly discredited -- first by William Lajeunese of FOX-TV and then by CBS (other "news" outlets remained unethically quiet about this massive criminal scheme).
I personally spoke with four BATFE agents at the SHOT Show, and got the real skinny on how such numbers are derived. First, any attempt at such numbers is flawed because Mexico has no idea how many guns it confiscates. A signifcant portion are simply bought back by the cartels from corrupt police departments and the military. Of the rest, only some guns, clearly of U.S. original are traced, making any percentages mere guess work. Finally, the traces on guns reported to the U.S. yield tiny confirmed straw-purchase paper trails. The percentages Mr. Obama and his cohorts used to drum up support were openly fictitious.
Why are the cartels more interested in AK-47s, instead of American-made AR-15s? One local justice department official suggests, "It's about appearances. They look more bad ass, with that banana clip. And they're cheaper." It's worth noting that AK-47s are not of American origin in the first place. They are primarily from former communist-bloc countries, and are produced in quantity in communist China and eastern European former Soviet states. The "news" media continues to insist that the guns are coming from the U.S., which is patently absurd for the cartles' weapon of choice, even if the U.S. is a drop-ship point.
Now, with nearly 2,000 U.S. guns smuggled into Mexico with the help of the agency that's supposed to be stopping such activity, yes indeed, U.S. guns are turning up at crime scenes. In addition, another 1,000 guns were smuggled out of the Tampa BATFE office, to Honduras, and from there into Mexico.
What is Obama's response? He attempts to bypass Congress and require dealers in border states to report mutliple long gun sales to the agency that is smuggling the guns! It's a hopeless attempt at a diversionary tactic. It fooled no one.
This organized criminal activity, sanctioned by federal authorities, could be Obama's Watergate -- except no one died from Watergate. Congressman Quayle here in Arizona publicly called it Obama's Iran Contra, but I think it's worse than that.
The idea that the trail stops at the local BATFE office in Phoenix is hard to believe, especially since Tampa was in on it too. Smuggling on this scale had to take place with knowledge from at least the AG's office, and his immediate boss is the man in the White House, who used the numbers to support his political agenda. This isn't over.
This is a special report from The Uninvited Ombudsman,
Alan Korwin, author of the Page Nine newsmedia watchblog.
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