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January 08, 2003

YESTERDAY, I POSTED ABOUT THE TITLE of a Washington Monthly article: "License to Kill: How the GOP helped John Allen Muhammad Get a Sniper Rifle." I pointed out that the Bushmaster in question is what is more commonly called an assault weapon and appears to have morphed into a "sniper rifle" in response to the political needs of gun-control groups, and noted that blaming the GOP seemed rather over the top.

In response (at least, their email implied it was in response) the Washington Monthly has now made the entire text available online, so you can read it and make up your own mind. There's nothing in there addressing the "sniper rifle" question, and the article certainly seems to blame the gun -- and the Republicans -- more than it blames, say, the actual shooter. This overwrought paragraph should illustrate what I mean:

One such gun was a .223-caliber semiautomatic Bushmaster XM15 rifle, which Bull's Eye received from the manufacturer on July 2 of last year. On Sept. 21, a bullet from that gun blew through the back of a liquor store manager in Montgomery, Ala. (she died in the emergency room soon after). Two days later, another bullet burrowed through the head of a beauty store manager in Baton Rouge, La., who died instantly. Between Oct. 2-3, bullets from the gun ripped through the bodies of six people in Montgomery County, Md., killing all of them. Over the next three weeks, the gun claimed seven more victims--including a bus driver, a female FBI analyst, and a 13-year-old schoolboy--killing four of them. Finally, on Oct. 24, law enforcement authorities found the Bushmaster in the back seat of a blue Chevy Caprice occupied by John Allen Muhammad and John Lee Malvo.

Note that the gun and bullets are apparently responsible for the deaths, not Muhammad and Malvo, who in this report merely occupied a Chevrolet Caprice -- an offense against automotive taste, perhaps, but no more.

The gist of the complaint is that, because of politics, the ATF lacks enforcement power. I don't know if this is true -- that's more Dave Kopel's department, and I'm no Dave Kopel. (Nor, as we've established, am I Michael Barone). I only know a couple of gun dealers, but my impression is that they take the ATF and its regulations seriously. That's hardly a statistically valid sample, though.

Read it and make up your own mind.

UPDATE: I'm not Dave Kopel -- but Dave Kopel is, and he emails as follows:

The important thing that the Wash. Monthly leaves out from its description of why Congress limited BATF's enforcement powers was BATF's egregious abuse of civil liberties under FOPA. Some of the details are in "No More Wacos," and also in my Oklahoma City Law Review article, which is available at www.davekopel.org

The short version is that a Congressional investigation officially concluded that seventy-five percent(!!) of BATF prosecutions were constitutionally improper. Agencies like IRS have had their powers curtailed for an abuse rate far below that. It's true that DEA has a lot of powers that BATF doesn't, but that doesn't mean that the DEA model is right. There's been plenty of abuse by DEA, too, but DEA doesn't have a powerful watchdog.

The figure about a high percentage of crime guns traced to about 1% of FFLs is less impressive than it sounds. There are a lot of FFLs which are very low volume dealers, selling a few dozen guns a year, as an adjunct to a small business, or as a weekend activity. In major metro areas, the small number of major gun stores will account for a very large percentage of guns sold. Those large stores which sell to customers who live in poor neighborhoods are going to show up in traces quite frequently, no matter how scrupulously the dealers obey the law; some of the customers of that dealer are going to have their guns stolen, and those guns will turn into crime guns. That happens a lot more to a dealer in central Detroit than to a dealer on the Upper Peninsula, but it doesn't prove that BATF needs new powers to use against the Detroit store.

The claim that dishonest gun dealers are immune from inspections 364 days a year is nonsense. The one-per-year limit applies only to random investigations involving no probable cause or suspicion. There is no limit on the number of audits which may be conducted pursuant to a genuine criminal investigation.

The fundamental thing wrong with the article is that he complains that the sniper shootings were caused by the Republicans/NRA because BATF didn't shut down Bulls Eye. (Of course there's the absurd presumption that the killers would not have been able to obtain a gun from another store, or from somewhere else.) But if Bulls Eye is in fact guilty of everything that the author charges, then BATF had full power to have Bulls Eye's FFL revoked. Once again, we have a case where the existing law wasn't enforced, and the gun prohibition groups then turn around and claim that more laws are needed.

Hypothesizing that BATF failed in this case, perhaps the solution isn't to demand more powers for a failed (supposedly) agency which egregiously abused greater powers when it had them. Instead, we need to begin thinking about whether a federal agency should be the main licensing agency for retail businesses. States are competent to license doctors and liquor stores -- why can't they be the ones to license firearms dealers? Federal licensing is a relic of a 1938 federal law, and like a lot of economic regulation from that era, is obsolete, and never worked very well to begin with. How about retaining existing restrictions on interstate gun sales, turning the licensing of firearms dealers over to the states (some states license dealers already, which is duplicative), and sending the BATF out to conduct criminal investigations of terrorists attempting to obtain guns. Of course these criminal investigations could legimately include investigations of stores suspected of selling to criminals.

So there you are. I like this business where I mention people and a few hours later have email from them answering my questions. I wonder if Britney Spears is really -- no, never mind. Let's not go there.

UPDATE: Reader David Lonborg (not Britney Spears) writes:

OK, I read the WM piece. And you're right, it's pretty horrendous. Maybe Mr. Kendall ought to consider the possibility that an awful lot of us find the idea of more "felony record-keeping charges" a lot scarier than the occasional armed nut.

Indeed.

ONE MORE UPDATE: Kendall replies:

I appreciate the interest you and Mr. Kopel have taken in the story I wrote in The Washington Monthly. Let me address your main criticisms.

First, while aficionados may object to using the term "sniper rifle," the Bushmaster was mounted with a scope and a bipod, and was capable (as we've seen) of murdering people from several hundred yards away. It has been referred to as a sniper rifle by the nation's leading newspapers, wire services, and television stations.

Second, the article clearly does not argue that Republicans and the NRA "caused" the killings, as Mr. Kopel says; I argue that restrictions on ATF's ability to crack down on wayward gun dealers made it far easier for the snipers to get their weapon. Mr. Kopel states that ATF had full power to revoke the license of the store in question, Bull's Eye Shooter Supply. While that's technically true, and I say in the piece that ATF should have done more, Kopel is dodging the central point: that the best way to enforce better compliance from stores like Bull's Eye is with penalties short of shutting them down--fines, temporary suspensions, etc. These more modest penalties are precisely the ones that the NRA and GOP made sure that ATF didn't have. This paralyzes ATF by putting them in the position of either putting a store owner out of business
completely, a rather draconian move, or doing nothing at all.

Kopel argues that there were ATF abuses before the 1986 restrictions were added, but the way to solve abuses is by disciplining the abusers, not robbing an agency of the tools it needs to do its job. If some police officers misuse their firearms, we don't respond by stripping the police force of its weapons.

Kopel says our statement that ATF can only audit a dealer once a year is nonsense, arguing that there is no limit on the number of audits than can be conducted in a criminal investigation. But we're talking about civil audits, not criminal ones. And ATF can only conduct a civil audit on a dealer once a year. If ATF had more flexibility in its ability to audit stores, the bureau could do more to prevent guns from hitting the streets, instead of having to wait until they've been used in crimes.

Kopel also takes issue with the data that show a high percentage of crime guns are traced to about 1 percent of FFLs, arguing that many FFLs in the remaining 99 percent are low volume dealers and located in more rural areas. So what? The point of the article is that ATF is restricted in its ability to discipline stores within that 1 percent, regardless of their volume or where they're located. Of course stores near high crime areas will have more crime guns traced back to them.

Some of those stores are doing nothing wrong. Others, through sloppy procedures, or out-and-out law breaking, are creating a menace to their communities. The gun store where the sniper suspects got their gun may be one of them. Our argument is that ATF is hamstrung in its ability to pursue precisely these bad actors.

This is more in answer to Kopel's point than to mine -- and in particular doesn't really answer my point about the blame-the-gun character of the language that I excerpted, which pervades the article. Nor -- given the generally ignorant and biased treatment of firearms in the mass media -- does the fact that newspapers called it a "sniper rifle" make it correct. Monthly magazines of ideas, like the Washington Monthly, are supposed to take the time to get things like that right in a way that daily papers can't.

What's disturbing about the efforts to call the Bushmaster a "sniper rifle" is that they dovetail so neatly with the latest campaign by advocacy groups. When journalists use the latest buzzphrase from anti-gun groups under circumstances where it really doesn't fit, it suggests that they're in the tank with those groups, or that they are sufficiently ignorant about the subject matter that they swallow the groups' points whole. And here, as near as I can tell, is their strategy:

"Saturday Night Specials" (cheap handguns) = Bad, must be banned

"Military Style Handguns" (expensive handguns) = Bad, must be banned

"Assault Weapons" (inaccurate, short-range rifles) = Bad, must be banned

"Sniper Rifles" (accurate, long-range rifles) = Bad, must be banned

As I said in my original post pointing this out, I think I'm starting to see a pattern here. And when an article seems to fit too neatly with that pattern, then I do tend to find it less credible.

FINAL UPDATE: Kopel replies to Kendall:

1. Mark Twain is reported to have said, "If a hundred people call a cow a dog, it's still a cow." The Bushmaster isn't a "sniper rifle," and no-one who knows anything about firearms would say that it is. There are thousands of guns which use scopes and bipods and which can kill from hundreds of yards. Only a small fraction of these guns are "sniper rifles." A cow has four legs and two eyes, and lives in multi-animal social groups, but the fact that a cow and a dog share some attributes which are also shared by many other animals doesn't mean that you can call a cow a dog. Even if the Associated Press calls a cow a dog, the fact that daily news outlets make a mistake doesn't justify the mistake being copied by a monthly magazine article that is supposed to be based on in-depth research.

2. BATF's abuse rate of 75% -- according to the findings of the U.S. Senate Subcommittee on the Constitution -- wasn't the result of a few bad agents. Such an abuse rate can only be the result of a pervasively flawed institutional culture. I don't think it's plausible to claim that an extraordinarily high abuse rate doesn't justify restricting an agency's powers. You can go back all the way to the Statute of Westminister promulgated by King Edward I (restricting sheriffs' powers which had been misused) up to the recent Congressional reforms of the Internal Revenue Service (which never had an abuse rate of 75% in its criminal prosecutions) to see lawmakers restricting powers which have been abused.

3. "the article clearly does not argue that Republicans and the NRA "caused" the killings, as Mr. Kopel says". That's parsing words awfully closely for a story with the headline "License to Kill: How the GOP helped John Allen Muhammed get a sniper rifle."

4. "Kopel is dodging the central point: that the best way to enforce better compliance from stores like Bull's Eye is with penalties short of shutting them down--fines, temporary suspensions, etc. These more modest penalties are precisely the ones that the NRA and GOP made sure that ATF didn't have. This paralyzes ATF by putting them in the position of either putting a store owner out of business completely, a rather draconian move, or doing nothing at all."

Absolutely wrong. 18 U.S.C. section 924 provides the penalties for violating the Gun Control Act, and it repeatedly says that violators "shall be fined." The author's error on this point suggests an inference that the author did not do his own research on some of the fundamental facts of the story -- such as checking firearms dictionaries for the definition of "sniper rifle," or checking the U.S. Code to read the law regarding penalties for firearms dealers who violate the GCA; rather, it seems possible that the author may have relied on a gun prohibition group for his facts in the story, and not gone far enough to verify those facts independently.

The article states that "ATF needed powers to encourage compliance: the ability to levy fines." It's misleading to the readers not to inform them that BATF already has the ability to seek fines -- after proving a violation in a court of law. An argument could be made that BATF needs the power to impose fines unilaterally, without having to prove a case in court. The article is loaded with nasty aspersions on Republicans, Ronald Reagan, and the NRA for successfully restricting BATF's powers in 1986, and for opposing new powers since then. It is misleading to offer this harsh attack without at least explaining that the restrictions were a reaction to what many people (including the UNANIMOUS Senate Subcommittee on the Constitution) found to be outrageous and pervasive abuse of power by BATF.

5. "Some of those stores are doing nothing wrong. Others, through sloppy procedures, or out-and-out law breaking, are creating a menace to their communities. The gun store where the sniper suspects got their gun may be one of them. Our argument is that ATF is hamstrung in its ability to pursue precisely these bad actors."

"Sloppy procedures" regarding the federally-required gun sales forms are a federal crime, and accordingly, the one-audit-per-year limit on BATF's random, suspicionless audits is irrelevant. BATF can conduct as many criminal audits as it wants for stores which violate record-keeping laws. BATF can seek fines against these stores (rather than revoking their FFL), if BATF can prove a violation in a court of law. As to whether BATF should have sought a fine against Bulls Eye for losing some its inventory, it might be fair to note that the FBI and BATF themselves have, in recent years, lost vast quantities of guns.

6. The article provides a one-sided recitation of the gun prohibition lobby's theory of why BATF isn't more effective: it's all the fault of the wicked NRA, and BATF just needs more power. An article more in keeping with the Washington Monthly's historic skepticism of bureaucracy might have included the perspective of some critics within BATF, such as National Association of Treasury Agents, who could have explained that enforcement problems are often the result of BATF's very serious management problems rather than always being the NRA's fault.

So there you have it. A dialogue that many people will no doubt find interesting.

OKAY, ONE MORE BUT THIS IS REALLY THE LAST UPDATE: Many, many readers sent emails along the lines of this one by Eric Bainter:

Mr. Kendall's reply to you on the "Sniper Rifle" article contains the following statements:

"Kopel argues that there were ATF abuses before the 1986 restrictions were added, but the way to solve abuses is by disciplining the abusers, not robbing an agency of the tools it needs to do its job. If some police officers misuse their firearms, we don't respond by stripping the police force of its weapons."

S'pose this logic applies to citizens as well? If a pair of wackos abuses a 'regular" rifle/"sniper rifle"/gun to kill people, the answer is to discipline the abusers, not to take away the hundreds/thousands of guns that the rest of the citizenry owns...

Yep. But this undercuts the entire philosophy of the gun-control movement.

I LIED ABOUT THAT BEING THE LAST UPDATE: Brent Kendall has emailed and asks me to post this reply to Kopel. As I am nothing if not generous about such things, here it is:

Kopel repeatedly insists on talking about what a court of law can do as a way of avoiding a discussion about what ATF can and can't do -- which is the clear
subject of our piece.

Regardless of Kopel's word twisting, it remains a fact: ATF cannot levy fines. The bureau's agents and inspectors cannot walk into a store and write a gun
dealer a ticket for record-keeping problems. When Kopel says that ATF "has the power to seek fines -- after proving a violation in a court of law," he is
attempting to sidetrack readers by entering into a discussion about the judicial process. This is a completely separate track from the subject in question:
ATF's civil, regulatory authority. This is the same exact tactic he uses in his misleading comments about ATF's audit authority -- he talks about "genuine
criminal investigations" when we're talking about routine regulatory powers. And reiterating from my previous post: in its regulatory duties, ATF is limited
to one audit per year.

Kopel's insistence in talking about the courts drips with irony, because there's one thing he isn't telling you. The 1986 law that watered down ATF's powers
reduced all record-keeping violations to misdemeanor offenses, making it extremely difficult for ATF to take dealers to court. As I say in the piece, federal
prosecutors, already burdened with more felony cases than they can litigate, usually don't accept misdemeanor referrals. This is one more example of the
chutzpah of the gun lobby -- demanding ATF prove its case in court after crippling its ability to go to court.

Well, it's "crippled" only because prosecutors don't think it's worth the time. As somebody who had to make political threats to get someone prosecuted for attempted vehicular homicide, I find that easy to believe, but it seems a bit beside the point. If Kopel responds, I'll post it here, too. After that, I'm telling them to set up a chatboard. . . .

KOPEL REPLIES:

1. I did state that Mr. Kendall's article (and some parts of his follow-up replies) were quite wrong factually. That doesn't mean that Mr. Kendall had a conscious intent to deceive. Like many journalists for very high-quality publications, Mr. Kendall may have made the mistake of relying too heavily on anti-gun lobbies for his facts and story frame, with insufficient independent verification.

2. In this final reply, Mr. Kendall at last raises an issue which is, at best, implied in his original article. While BATF can seek fines in a court of law, BATF can't impose them unilaterally. As I said in my second reply, "An argument could be made that BATF needs the power to impose fines unilaterally, without having to prove a case in court." The original Kendall article never tells readers that FFLs can be fined under existing law. There's a good article to be written about what BATF, at least arguably, needs the power to impose fines by its own fiat, rather than having to prove a case in court -- but that wasn't the article that the Washington Monthly published.

3. Mr. Kendall refers to Kopel's "misleading comments about ATF's audit authority -- he talks about 'genuine criminal investigations' when we're talking about routine regulatory powers. And reiterating from my previous post: in its regulatory duties, ATF is limited to one audit per year." Kendall had originally written that rogue dealers are immune from audits 364 days a year. BATF don't need a regulatory audit to investigate such dealers; criminals audits provide more than sufficient power. Mr. Kendall didn't tell the readers that BATF can perform an unlimited number of audits when there is genuine criminal suspicion. There might be a good article to be written about why unlimited criminal audit powers don't suffice for audits of criminally-suspect FFLs, but that article wasn't the article that was published.

4. "Kopel's insistence in talking about the courts drips with irony, because there's one thing he isn't telling you. The 1986 law that watered down ATF's powers reduced all record-keeping violations to misdemeanor offenses, making it extremely difficult for ATF to take dealers to court. As I say in the piece, federal prosecutors, already burdened with more felony cases than they can litigate, usually don't accept misdemeanor referrals. This is one more example of the chutzpah of the gun lobby -- demanding ATF prove its case in court after crippling its ability to go to court." Intentionally supplying guns to criminals is still a major federal felony. Paperwork violations that aren't based on an intent to harm are not, in my view at least, appropriately classified as federal felonies. I realize that federal laws in other fields make minor paperwork errors into felonies, but I'd suggest that those laws ought to be changed too. If overburdened U.S. Attorneys won't take legitimate misdemeanor referrals from BATF, perhaps the solution isn't to change paperwork errors into felonies. Instead, how about relieving the federal prosecutors of the vast amount of other federal cases that have little to do with genuine federal interests, but which instead are based, as Glenn and I have argued elsewhere, on misuse of the interstate commerce power to create laws having no real connection to interstate commerce. (See http://www.davekopel.com/CJ/LawRev/Taking_Federalism_Seriously.htm ) And as I suggested in my first reply, how about getting BATF out of the licensing business, and letting states take care of the issue -- as they do with liquor stores, doctors, and most other forms of business licensing? State prosecutors tend to be quite willing to accept misdemeanor referrals. Readers who would like the details of the 1986 reforms of BATF powers may enjoy reading David Hardy's enormous law review article on the subject: http://www.hardylaw.net/FOPA.html
The Firearms Owners' Protection Act of 1986 would serve as a useful template for the reform of many other federal criminal law enforcement agencies, including the DEA.

Mr. Kendall and I are doomed to disagree on the issue of whether (as he suggests)the BATF should have powers like the DEA, or whether (as I believe) DEA and other federal agencies ought to have to abide by the same due process protections that apply to the BATF. As a magazine journalist, he's entitled to his opinion; where I think his article fell short, journalistically, was in not informing readers about some of the important factual issues (which we've discussed in these exchanges) which a well-informed reader ought to know in order to make up her own mind. A writer has only so much space to tell a story, so it's always a judgment call about what facts to include. I'd suggest that if readers re-examine Mr. Kendall's article, many readers will conclude that the article would have been much more solid if it had included some of the facts which we've discussed in these Instapundit exchanges.

One more thing:

The Washington Monthly stated "ATF has no power to temporarily suspend a dealer's license, or impose a fine."

In fact, 18 U.S. Code section 922(t) states that if a firearms dealer transfers a firearm without complying with the National Instant Check System, then BATF may, through administrative action, "after notice and opportunity for a hearing, suspend for not more than 6 months or revoke any license issued to the licensee under section 923, and may impose on the licensee a civil fine of not more than $5,000." See: link.

And now this really is over. If there's more guys, you'll have to, er, take it outside.

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