Gun Trafficking and the Southwest Border
Previously Proposed Anti-Gun Trafficking Measures
Although no anti-gun trafficking measures have been introduced
during the 111th Congress thus
far, a few were introduced during the 110th Congress. These
proposals would have strengthened
provisions of the GCA, arguably, by repealing certain limitations on
the release of ATF firearm
trace data; requiring comprehensive crime gun tracing nationally;
establishing new recordkeeping
requirements on second-hand firearms sold or traded back to FFLs,
with a focus on identifying
stolen firearms; increasing penalties for licensed and non-licensed
persons for violating certain
provision of the GCA; and establishing a federal
one-handgun-per-month limit for transfers
between FFLs and non-licensed persons.
Anti-Gun Trafficking Penalties Enhancement Act of 2007 (S. 77 and
H.R. 1895)
In January 2007, Senator Charles Schumer introduced S. 77, the
Anti-Gun Trafficking Penalties
Enhancement Act of 2007. This proposal would have:
• repealed ATF appropriations limitations that restrict the
disclosure of information
stored in the Firearms Trace System database or multiple handgun
sales reports;
• required federal, state, and local law enforcement agencies that
recovered a
firearm that was determined to have been stolen or used in a crime
to report this
information to ATF, so that it could be included in the Firearms
Trace System
database;131
• amended the Attorney General’s (AG) authority to conduct
unannounced
inspections of FFLs, so that he could conduct such inspections “at
any time that”
he “may reasonably require”;
• made certain offenses under the GCA predicate offenses under the
Racketeer
Influenced and Corrupt Organizations Act,132 including (1) disposal
of a firearm
to a prohibited person, (2) possession of a firearm or ammunition by
a prohibited
person, (3) knowingly handling firearms or ammunition for an
employer who is
known to be a prohibited person, and (4) shipping or receiving
firearms while
under felony indictment; and
• increased the maximum term of imprisonment for those violations
from not more
than 10 years to not more than 20 years.
Representative Carolyn McCarthy also introduced a similar proposal—H.R.
1895. This bill
included all the provisions in S. 77, except for the provision that
would have granted the AG
additional inspection authority and the provision that would have
increased the maximum penalty
for certain violations.
Detectives Nemorin and Andrews Anti-Gun Trafficking Act of 2008 (H.R.
4818)
In December 2007, Representative Peter King introduced H.R. 4818,
the Detectives Nemorin and
Andrews Anti-Gun Trafficking Act of 2008. This proposal would have
amended the GCA by
creating a new subsection at 18 U.S.C § 924—Penalties. This
amendment would have created a
new separate “gun trafficking” crime punishable by a fine and/or
imprisonment of not more than
20 years for committing a certain offense under the GCA under one of
two conditions.
The first set of conditions would have been the offering for sale,
transfer, or barter of two or more
handguns, semiautomatic assault weapons,133 short-barreled shotguns,
short-barreled rifles, or
machineguns, of which at least one was transported, received or
possessed by that person and
stolen or had the importer’s or manufacturer’s serial number
removed. The second set of
conditions would have been the offering for sale, transfer, or
barter of two or more handguns,
semiautomatic assault weapons, short-barreled shotguns, short-barreled
rifles, or machineguns, of
which at least one was offered by sale, transfer, or barter, to
another who is either prohibited by
federal or state law from possessing a firearm, not 18 years of age,
is in a school zone, or is not a
resident of the state in which he has attempted to acquire the
firearms.
If someone committed an offense already punishable by the GCA,134
each of which carries its
own penalty, under either of these conditions, such a person could
be prosecuted under this
separate gun trafficking crime and face a fine and/or imprisonment
of not more than 20 years.
This bill was silent as to whether the sentences for the proposed
“gun trafficking” crime and the
individual predicate GCA offenses, if a person was prosecuted under
both provisions, would have
been served consecutively or concurrently. It appears that such
matter would have likely been
influenced by the U.S. Sentencing Commission guidelines.
This bill also included numerous other provisions oriented toward
gun trafficking. Among other
things, the bill would have: (1) increased funding for Project Safe
Neighborhoods; (2) required
the AG to give a biennial report to Congress on firearms tracing and
prosecutions; (3) required the
FBI to give ATF access to its stolen gun files maintained in its
National Crime Information
Center; (4) required the AG to establish a “national instant stolen
gun check system”; and (5)
made it unlawful to transport, possess, or receive a firearm that
had the importer’s or
manufacturer’s serial number removed, obliterated, or altered,
regardless of one’s awareness of
this fact.
End Gun Trafficking Act (S. 3634)
In 2008, Senator Frank Lautenberg introduced S. 3634, the End Gun
Trafficking Act. This bill
would have prohibited FFLs from selling or otherwise disposing of a
handgun to a non-licensee,
if the FFL knew or had reasonable cause to believe that the
non-licensee had purchased a
handgun in the previous 30-day period. With some exceptions, this
bill would have also
prohibited any unlicensed person from purchasing more than one
handgun during any 30-day
period. A violation of these prohibitions would have been punishably
by a fine and/or
imprisonment of not more than 10 years. S. 3634 also would have
repealed the multiple handgun
sales report requirement and would have authorized the AG to issue
rules and regulations to
ensure that the National Instant Criminal Background Check System (NICS)
would be able to
identify whether a prospective transferee had received a handgun
from a FFL within the previous
30 days. Finally, this bill would have repealed the annual
appropriations limitations for FY2004-
FY2008 that prohibited the expenditure of any appropriated funding
to maintain NICS records on
approved transfers for more than 24 hours, and allow records to be
kept for not less than 180
days.
Endnotes
131 Currently, federal, state, local, and tribal law
enforcement agencies may submit information to the FBI for inclusion
in the National Crime Information Center’s stolen gun file. FFLs, on
the other hand, are required to report the theft or
loss of firearms to ATF and local police within 48 hours following
discovery. 18 U.S.C. § 923(g)(6).
132 18 U.S.C. §§ 1961-1968.
133 As previously mentioned, a statutory definition
for “semiautomatic assault weapon” no longer exists. The 1994
Semiautomatic Assault Weapons (SAW) Ban, which expired in 2004, had
defined, for example, a rifle as a
semiautomatic assault weapon if it was able to accept a detachable
magazine and included two or more of the following
five characteristics: (1) a folding or telescopic scope, (2) a
pistol grip, (3) a bayonet mount, (4) a muzzle flash
suppressor or threaded barrel capable of accepting such a
suppressor, or (5) a grenade launcher. (Former 18 U.S.C. §
921(a)(30)). Similar definitions existed for semiautomatic pistols
and shotguns.
134 The GCA offenses in title 18 that would have been
implicated in this new gun trafficking crime were: (1) §
922(a)(1)(A), unlawful to willfully engage in business of dealing
firearms without a license; (2) § 922(a)(3), unlawful
for non-licensee to willfully transport or receive a firearm
obtained in another state into his state of residence; (3) §
922(a)(6), unlawful to knowingly make a materially false statement
to a FFL; (4) § 922(b)(2), unlawful for a FFL to
willfully deliver a firearm to a person where the purchase or
possession would violate state law; (5) § 922(b)(3),
unlawful for a FFL to willfully deliver a firearm to a person
residing in a state other than the FFL’s; (6) § 922(b)(5),
unlawful for FFL to willfully dispose of a firearm without making
entries required by law; (7) § 922(d), unlawful for
any person to knowingly dispose a firearm to a prohibited person;
(8) § 922(g), unlawful for any prohibited person to
knowingly receive or possess firearm or ammunition; (9) § 922(i),
unlawful for any person to knowingly transport or
ship a stolen firearm; (10) § 922(j), unlawful for any person to
knowingly receive, possess, conceal, store, barter, sell,
or dispose of stolen firearm; (11) § 922(k), unlawful for any person
to knowingly transport, ship, or receive a firearm
that has obliterated or altered serial number; (12) § 922(m),
unlawful for a FFL to knowingly make a false entry in or
properly maintain records required by law; (13) § 922(n), unlawful
for any person to willfully ship or receive firearms
or ammunition if under indictment for felony; (14) § 924(c),
unlawful for any person to use or carry a firearm during or
in relation to a federal crime of violence or drug trafficking
crime; (15) § 924(h), unlawful for any person to transfer a
firearm knowing it will be used to commit a crime of violence or
drug trafficking crime.
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