Respond to this Article January/February 2003

License to Kill

How the GOP helped John Allen Muhammad get a sniper rifle.

By Brent Kendall

Bull's Eye Shooter Supply is a warehouse-sized gun store near the waterfront in Tacoma, Wash. Boasting the Puget Sound's largest selection of firearms and ammunition, the store is a mecca for area sportsmen, who come to browse the latest hunting rifles or practice their marksmanship at the store's 12-lane shooting range. An outside wall of the store bears a hand-painted mural depicting lions, elephants, cheetahs, and water buffaloes. Some of the store's firearms, however, have felled more than big game.

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.

Exactly how the gun got into the men's hands remains something of a mystery. Muhammad was banned by federal law from purchasing any gun because of a restraining order obtained by his ex-wife; his ineligibility would have shown up during the Brady background check that gun stores are required to run on potential buyers. Malvo was ineligible because he was a juvenile and an illegal immigrant. Bull's Eye has no record of selling the weapon, much less conducting a background check on Muhammad or Malvo for it. Bull's Eye employees have reported seeing Malvo at the store this summer, and later noticed the Bushmaster was not in its display case. But the store did not file the federally required theft report. When the store's owner, Brian Borgelt, was questioned by agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF), the federal agency charged with enforcing the nation's gun laws, he claimed not to have known the gun was missing until authorities traced it back to his store. Two weeks after the sniper suspects' arrests, he filed the theft report with the police and ATF.

This wasn't the first time that Bull's Eye was caught unable to account for deadly firearms that had passed through its doors. ATF inspectors, armed with data showing that weapons used in crimes had originated from Borgelt's store, audited it three times between 1998 and 2001, and found record-keeping irregularities each time. An audit in 2000 revealed that Borgelt could not account, through sales records, for 160 guns. Being unable to account for the whereabouts of even one-fifth that many weapons would be alarming, according to former ATF agents, even for a store the size of Bull's Eye. Moreover, Borgelt hadn't filed personal income tax returns since 1995 and hadn't filed some business tax forms since 1994--this despite $1.5 million in store bank deposits.

Yet despite all the warning signs, ATF didn't shut the store down. It didn't suspend Bull's Eye's license, or put it on probation. It didn't even administer a fine--not one $5 ticket to let the store know that the bureau meant business. Two years later, a $1,600 sniper rifle seems to have disappeared from the store like a pack of M&Ms from a convenience mart, surfacing 3,000 miles away in one of the biggest killing sprees in American history--oh, and one more thing: Bull's Eye is still open for business.

In the wake of September 11, the CIA, FBI, and INS have all been picked apart for failing to act on information that might have prevented the terrorist attacks. So far, there has been no similar call for investigating ATF, even though experts worry that Muhammad--a member of the Nation of Islam who reportedly considered America a terrorist state--may inspire al Qaeda or other terrorist groups to conduct similar attacks with easily obtained sniper rifles.

But there's a reason you won't see anyone investigating ATF: Its failings are the direct result of actions by the Republican politicians who now control both houses of Congress. At the behest of the National Rifle Association (NRA), GOP lawmakers (and some conservative Democrats) have saddled the bureau with so many legal restrictions that it has little practical power to deter sellers from allowing weapons to flow to criminals. ATF could have cracked down harder on Bull's Eye, but its lack of aggressiveness was precisely what GOP lawmakers had intended. Pro-gun-control Democrats could have made an issue last fall of how Muhammad obtained a sniper rifle, but they remained silent in the face of feared retribution at the polls by the NRA. Now, as the minority party, Democrats have little power to investigate anything, even if they wanted to.

Convenient Lack of Suspicion

Every year, more than 200,000 guns used in crimes are traced back to licensed gun dealers like Bull's Eye. Some are originally purchased by law-abiding citizens and later stolen. Others get sold (inadvertently) by dealers to "straw purchasers" who don't have criminal records but are acting as fronts for criminals. In many other cases, however, gun dealers eager to make an extra buck simply sell firearms to anyone who wants them, skipping background checks and falsifying paperwork to cover their tracks.

Of the 83,000 retail firearms dealers in America, ATF shuts down only about 25 annually. These are the most egregious wrongdoers, dealers caught red-handed fencing stolen weapons or openly selling large numbers of firearms to criminals. Yet these few cases account for only a fraction of the guns that flow to criminals from licensed dealers. The bigger problem stems from hundreds of other dealers who, through laziness, sloppy inventory control, convenient lack of suspicion, or under-the-table shenanigans, wind up arming criminals.

It is these dealers that ATF has virtually no power to control. Though it can shut a dealer down permanently--a fitting punishment only in egregious cases--ATF has no power to temporarily suspend a dealer's license, or impose a fine--steps that might remind a dealer to be vigilant about sales rules. Nor can it audit a gun dealer more than once a year, a rule that assures crooked dealers 364 days to do uninterrupted business. And because of dubious judicial precedent, the bureau's agents can't get a dealer charged with selling to a felon by going undercover and posing as felons.

Worse still, from a law-enforcement perspective, is the fact that federal law treats all record-keeping errors by gun dealers as, at most, misdemeanors--even in cases where ATF can prove that a dealer falsified records. This makes it practically impossible to bring gun dealers to court for record-keeping violations, since federal prosecutors, already burdened with more felony cases than they can litigate, usually don't accept misdemeanor referrals.

You'll be hard pressed to find another federal agency that, charged with enforcing laws dealing with legal but potentially dangerous products, must operate under similar handicaps. The Drug Enforcement Administration, which monitors the illegal diversion of prescription drugs, can pursue felony charges against a pharmacy for record-keeping problems; temporarily suspend the license of a problematic pharmacy; and when it has evidence of wrongdoing, mount an undercover approach to determine if a doctor is writing bogus prescriptions or if a pharmacist is illegally dispensing controlled substances. Even the Department of Agriculture, which is notoriously emasculated when it comes to enforcing federal standards, can, after a major food poisoning incident, temporarily stop production at an unsanitary meat packing plant, fine the plant, and re-visit for a new round of inspections in six months.

Reagan's Political Trifecta

Washington has been trying to keep deadly weapons out of criminal hands for almost seven decades. In 1934, alarmed by the violence of organized criminals like Al Capone, Congress passed the nation's first gun-control law, which gave the Treasury Department the power to tax and require owner registration of "gangster-type weapons." In 1938, it passed another measure requiring gun manufacturers and dealers to obtain federal licenses and banning the sale of firearms to known criminals. Thirty years later, in response to rising crime rates and the assassinations of John F. Kennedy, Robert Kennedy, and Martin Luther King Jr., the federal government clamped down further with passage of the 1968 Gun Control Act. Among other things, this law mandated that sellers keep transaction records and prohibited felons, illegal aliens, and a few other categories of people from buying or possessing firearms. In 1972, Treasury designated ATF as a separate agency in the department.

The NRA vehemently opposed the 1968 legislation, which marked the beginning of the association's transformation from its more traditional focus on training sportsmen in gun safety into the anti-enforcement, lobbying superpower we know today. Since 1968, the association has increasingly devoted more resources to waging political fights, and has constantly lobbied to minimize the power of ATF, often breathing fire when speaking of it. During the 1970s as ATF stepped up its policing of gun dealers, the NRA fought back, portraying ATF agents as "jack-booted fascists" and arguing that efforts targeting gun stores and their customers were nothing more than harassment. After all, the NRA argued, criminals don't get their guns from gun stores; they steal them from law-abiding gun-owners.

At the end of the decade, the NRA found a big friend in Ronald Reagan. By being anti-ATF and supporting gun dealers, Reagan could demonstrate that he was pro-gun, pro-small business, and anti-federal regulation--the perfect trifecta for a conservative Republican. The Gipper promised to eliminate ATF, and once in office he moved to make the pledge good. When the NRA reversed its position, fearing that a proposed merger with the Secret Service would make federal firearms authority politically untouchable, Reagan backed the NRA in substituting deregulation for reorganization, signing the 1986 Firearms Owners' Protection Act, which significantly curtailed ATF's enforcement powers against the firearms industry. The law limited the number of times ATF could conduct a compliance audit on a gun dealer to once a year. More importantly, it reduced all record-keeping violations--no matter whether there was one violation or a thousand, and no matter if records were falsified--to misdemeanors, thus entirely removing the threat that ATF could pursue felony charges against dealers flouting record-keeping laws and selling guns to prohibited persons under the table.

Gunning for Reform

Bill Clinton's election began to change the landscape in two ways. First, in 1993 the administration passed, against stiff GOP opposition, the Brady law, which required gun dealers to run background checks on all buyers. The next year, it pushed through Congress legislation banning most new assault-style weapons and prohibiting juveniles from possessing handguns. The NRA responded by declaring war on the president and the Democratic Party. The Democrats lost their majorities in both houses of Congress that year; most political experts credit NRA campaign efforts with several key GOP victories.

By 1995, however, the Brady law was beginning to show results. In its first year, it had blocked 40,000 attempts to purchase firearms by criminals, juveniles, and other prohibited persons--evidence that in fact many criminals were looking to gun stores for their firepower. Beginning the next year, the Clinton administration directed ATF to work with local law enforcement to expand the tracing of guns recovered by police, and to invest in new tracing technologies. As a result, ATF discovered that tens of thousands of crime guns actually flowed from licensed retail dealers and pawnbrokers to the streets. Moreover, most of the guns flowed primarily from a small minority of dealers--just 1.2 percent of dealers accounted for 57 percent of those crime gun tracings (ATF shuts down only about one in 40 of these per year).

Believe it or not, these were stunning discoveries, and they demonstrably proved that, despite decades of NRA propaganda, gun stores do play a major role in supplying criminals with guns.

Responding to the information, the White House won big increases in ATF's enforcement and inspector ranks. But to really deter licensed sellers from violating federal laws--as opposed to just arresting them after guns hit the streets--ATF needed powers to encourage compliance: the ability to levy fines, suspend licenses, audit when necessary, and charge dealers with felony record-keeping violations when appropriate. The Clinton administration and a few lone voices in Congress, especially Sen. Chuck Schumer (D-N.Y.), pushed legislation to give ATF this new authority while also requiring background checks at gun shows.

A string of high-school shootings, which peaked with the catastrophe at Columbine High School, gave the legislation enough momentum to narrowly pass the Senate in 1999, with Vice President Al Gore providing a tie-breaking vote. The House passed a weaker version of the Senate bill, and the measure died when efforts to reconcile the two versions went nowhere. Gore's highly publicized vote, according to many political analyses, was a major factor in his loss of West Virginia's five electoral votes in the 2000 election.

In theory, the sniper shootings should have been an occasion to raise again the issue of ATF's limited enforcement powers against dealers supplying criminals with guns. But while debates have raged about whether congressionally imposed restraints on the CIA and the FBI contributed to those agencies' failures to foresee impending terrorist activity, few have asked about similar restraints that might have kept ATF from preventing the terror on the East Coast--even if it had usable information. And it's pretty obvious why. Republicans, as the architects of the current regulatory system, are directly responsible for ATF's limited powers. Democrats, still smarting from the drubbings they took in 1994 and 2000, are understandably nervous about stirring up the gun issue, even though the sniper shootings happened in the thick of an election cycle and captured nationwide attention.

Other than in a few scattered newspaper editorials, the issue of ATF enforcement has stayed off the public radar screen. By and large, people have little clue just what the laws are, and they have no idea how toothless ATF is when it comes to policing gun dealers. Even government lawyers don't know how hamstrung the bureau is. "I've sat in rooms of federal prosecutors--career prosecutors--and ATF people are explaining to them, 'This is the way firearms commerce is governed,'" says David Kennedy, a senior researcher in criminal justice policy at Harvard's Kennedy School of Government, "and the prosecutors don't believe them. It's surreal."

Had ATF been vested with sensible enforcement powers, the world might never have heard of John Allen Muhammad or John Lee Malvo. Had a few political fights turned out differently, the bureau would have been able to fine Bull's Eye for its previous violations, suspend its operations, or pursue felony record-keeping charges. Had the NRA and GOP not worked together to cripple the federal government's ability to enforce gun laws, bullets from that Bushmaster rifle might not have ended the lives of 10 people along the Interstate 95 corridor. Yet despite the dead, the wounded, and the terrified, little has changed politically. If horrors such as these can't spark public scrutiny and political outrage, it's hard to understand what will.

Brent Kendall is a Washington Monthly editorial assistant.


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