A lawyer for two Arizona gun dealers argued Wednesday that the Obama administration in trying to halt the flow of U.S. guns to Mexican drug gangs overstepped its legal authority when it required dealers in Southwestern border states to report when customers buy multiple high-powered rifles.
Attorney Richard Gardiner told a federal appeals court panel Wednesday that the directive requires gun dealers to create a records system and the government has no authority to do that.
At issue is a requirement that the Bureau of Alcohol, Tobacco, Firearms and Explosives imposed in 2011 on gun sellers in California, Arizona, New Mexico and Texas. The requirement, issued in what is known as a demand letter, compels those sellers to report to the ATF when anyone buys — within a five-day period — two or more semi-automatic weapons capable of accepting a detachable magazine and with a caliber greater than .22. The ATF says the requirement is needed to help stop the flow of guns to Mexican drug cartels.
Judge Harry T. Edwards, an appointee of Democratic President Jimmy Carter, asked Gardiner if the model number on a rifle would indicate whether it was covered by the ATF requirement.
"It might," Gardiner replied, but added that the person doing the record-keeping might not be able to tell that.
"Oh, come on, that can't be right," Edwards said, suggesting that the person who owns the federal license to sell firearms would know.
Gardiner, who is representing J&G Sales, Ltd., of Prescott, Ariz., and Foothills Firearms, LLC, of Yuma, Ariz., said that nothing in the law allows for the presumption that the federal licensee would have that knowledge.
Judge Judith W. Rogers, an appointee of Democratic President Bill Clinton, asked if the types of rifles covered by the demand letter were unusual.
Gardiner said they were not: "There are probably 100 million of them in the United States — if not more." Gardiner said that the definition is so broad it covers rifles for everything from target practice to hunting wolves, deer or bear, or even smaller game.
Justice Department lawyer Michael Raab said sellers should be able to determine by the manufacturer and model number if a particular rifle is covered by the requirement. He also said that sellers were told they can call the ATF's firearm's technology branch if they have any questions.
"We're not aware of any requests or confusion," he said.
The third judge on the panel, Karen LeCraft Henderson, who was appointed by Republican President George H.W. Bush, asked Raab about al measure Congress passes every year banning the ATF from establishing a national firearms registry. Raab noted that the ATF already requires sellers nationwide to report when someone purchases two or more pistols or revolvers within five days, which is not being challenged in this case. The ATF demand letter at issue here, Raab said, is "much narrower."
The appeals court is reviewing the case as the Obama administration works to meet a self-imposed Jan. 31 deadline for proposals to curb gun violence in the wake of last month's massacre of 20 children and six adults at a Newtown, Conn., elementary school. President Barack Obama has already called on Congress to reinstate a ban on military-style assault weapons, close loopholes that allow gun buyers to skirt background checks and restrict high-capacity magazines.
Last year, U.S. District Judge Rosemary M. Collyer rejected a challenge to the ATF requirement by the two Arizona gun sellers and the firearms industry trade group, the National Shooting Sports Foundation. In court papers, the trade group argues that the agency didn't have the legal authority to issue the requirement, and even if it did, its decision to impose it on every retailer in the border states was arbitrary and capricious.
"There is no rational law enforcement connection between the problem ATF sought to address — illegal firearms trafficking from the United States to Mexico — and merely conducting a lawful retail firearms business from premises located in one of the border states," the trade group wrote in its appeal brief. It also said that Collyer's review was "at best perfunctory," and claimed that she "rubber stamped" the ATF's policy. Collyer is an appointee of Republican President George W. Bush.
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