THE BLOG
11/03/2014 08:15 am ET Updated Jan 03, 2015

Expand Background Checks for Guns. But First, Reform the ATF.

ASSOCIATED PRESS

When it was revealed in December, 2010 that U.S. Border Patrol agent Brian Terry was killed with a gun that had been "walked" out of an Arizona gun shop as part of an ATF-managed gun-running operation called Fast and Furious, to put it politely, all hell broke loose. Guns "walk" out of a gun store when someone has been allowed to commit a "straw" purchase with the knowledge and approval of law enforcement, in this case, the ATF. A straw purchase is a serious federal felony because someone who can pass the required background check is, in fact, buying the gun for someone who can't. Straw sales are considered the primary method by which guns get into the wrong hands and the ATF conducts random inspections of licensed dealers in order to identify such sales.

The ATF has been responsible for regulating federally-licensed gun dealers since the passage of the Federal Firearms Act in 1938. This law, for the first time required interstate gun transfers to be made via licensed dealers (the license cost a buck), and also required dealers to sell guns only to residents of their own state. The law was strengthened by the Gun Control Act of 1968, which established categories of "prohibited" persons (felons, fugitives, etc.) to whom guns could not be sold, required dealers to verify the identity of the purchaser and to retain records of each sale. The ATF, which was a small operation within Internal Revenue Service under the Department of the Treasury, was given authority and additional resources to conduct gun-shop inspections to make sure that dealers were following the law.

The role of the ATF expanded again with the passage of the Brady Bill in 1994. This law created the instant background check system which allows the FBI to examine court records of anyone before the public purchase of a gun. The law requires dealers not only to verify the identification of the purchaser, but also to withhold delivery of the gun if the FBI, based on background check results indicates that the sale should not go through. If a dealer allows purchases to be consummated without a background check, or does not exercise diligence in verifying the identity of the buyer, once again ATF gets into the act.

If the current argument over expanding background checks to all gun transfers ends up in the elimination of private sales, the result will be a further widening of the firearm regulatory infrastructure and a greater degree of authority vested in the ATF. And because the debate over background checks has focused entirely on whether such checks will actually reduce crime, the issue of fixing the regulatory system has been largely ignored. Some Republicans whine that the system isn't working because the ATF's activities result in just a handful of gun prosecutions each year. But the issue isn't really whether the criminal enforcement of gun regulations should be stepped up. After reading thousands of pages of government documents on Fast and Furious, I believe the regulatory system itself may be in need of a serious overhaul to get things really fixed.

The ATF encouraged gun dealers to make these Fast and Furious sales which, in every single case, required the dealer to violate federal regulatory laws that the ATF is supposed to enforce. More than 2,000 weapons walked out of gun shops because the ATF believed that busting an important gun-running operation would, for the first time, heighten ATF's role and value in the federal law enforcement scheme of things. ATF is brought in on all crimes that involve guns, but the dirty little secret is that picking up the gun counts very little, it's all about catching and convicting the guy who used a gun to commit the crime.

Don't get me wrong. I'm not against expanding background checks to cover private sales. But until the ATF's role in federal law enforcement is clearly defined and understood, just giving them more gun transactions to regulate could create more problems than it solves.