In June 2021, the Biden administration announced it would change how it enforces the Gun Control Act of 1968. The act allows the federal government to revoke gun dealers’ license to sell firearms—commonly called federal firearms licenses or “FFLs”—when dealers “willfully” violate federal or state gun laws. Central to its policy is a new zeal to revoke licenses for minor clerical errors that don’t result in unauthorized individuals obtaining a firearm. The results have been staggering, as some estimates have FFL revocations up over 500% from recent years.
This enforcement policy is the latest of the administration’s many attempts to twist the meaning of old statutes to impose its preferred regulatory agenda. The administration’s policy focuses on paperwork errors when gun shops and buyers fill out a “firearms transaction record,” commonly called a Form 4473. The form requires roughly 100 data points, and a medium-sized gun shop might complete about 5,000 of them a year. If either the buyer or seller answers any of these prompts incorrectly or incompletely—such as one buyer in Florida who mistook “county” for “country”—that is technically a violation of the Gun Control Act. The Administration has begun revoking licenses based on a handful of these inadvertent mistakes among thousands of Form 4473s that do not result in criminals or prohibited possessors obtaining guns. There’s just one problem: The Administration’s enforcement policy ignores the text of the Gun Control Act.
The Act only allows revocation of federal firearms licenses when licensees “willfully” violate it. For decades, the federal government took the position that it would only try to revoke licenses when dealers intentionally violated the Gun Control Act or acted in reckless disregard of or indifference to the Act’s requirements. No more. The ATF—the agency in charge of enforcing the Gun Control Act—now seeks to enforce it without regard to a dealer’s mental state, a position completely inconsistent with the Act’s language.
That is why the owner of Central Texas Gun Works, Michael Cargill, has joined with the Texas Public Policy Foundation to challenge this new policy in court. The law does not allow the federal government to revoke federal firearms licenses for clerical mistakes. Violations must be “willful.” The court should put a stop to the Administration’s illegal overreach.
By now, the Biden Administration’s strategy might sound familiar to the courts and public. One of its favorite tactics is to dust off an old statute, find a word or phrase with a slight ambiguity, stretch it to its broadest possible meaning, and then claim congress had always vested it with such enormous powers. This is the same strategy it used to attempt to impose an employer vaccine mandate through OSHA and the CDC’s masking requirement on airplanes.
In the vaccine mandate case, the Administration claimed it could force most American workers to get a COVID-19 vaccine under a 1970 statute that allowed for “emergency temporary” regulations to protect employees from a “grave danger from exposure substances or agents determined to be toxic or physically harmful or from new hazards.” OSHA had only used the statute a handful of times—and most of those actions failed to hold up in court—and only once since 1983. Generally, those emergency regulations concerned chemicals such as organophosphorous pesticides, vinyl chloride, and 1,2-Dibromo-3-chloropropane. Never did they concern sicknesses that are spread through the general population both inside and outside of the workplace. The Supreme Court rightly struck it down.
Similarly, in the masking case, the CDC used an even older statute: the Public Health Services Act of 1944. In it, the CDC is delegated the authority to create regulations to prevent the spread of communicable diseases between states. These regulations allow for “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles …, and other measures.” If you read those words and aren’t sure which of them allows the CDC to force every air traveler to wear a mask, you aren’t alone. The federal government argued it was simply a sanitation measure, but a federal court disagreed. In its analysis of the statute, the context of the statue was clear. “Sanitation” was limited to cleaning items and limited to property. It would be a very unnatural reading of “sanitation” to give a definition that would go beyond sanitizing an item, when that would make the words around it—like “disinfection” and another subsection dealing with restrictions on people—redundant. In other words, courts are rightly skeptical when the government claims unprecedented power from a long existing statute.
The administration has done the same when it comes to gun control. Recognizing it could never get its preferred gun-grabbing policies passed by Congress, it dusted off an old statute and attempted to rewrite it to fit its agenda. By enforcing the Gun Control Act in a way that writes “willfully” out of the statute, the administration threatens the livelihoods of small business owners and the constitutional freedoms of Americans everywhere. The administration shouldn’t be allowed to ignore words in a statute. Mr. Cargill’s lawsuit will put a stop to it.