Group files open records request for gun rule documents

Earlier this month, the watchdog group Empower Oversight said that whistleblowers inside the federal Bureau of Alcohol, Tobacco and Firearms are drafting a rule that would require background checks for all guns sales in the country, effectively banning the private sale of firearms.

The group says its sources indicate that the agency has a sprawling 1,300-page document supporting its justifications for the regulation. According to Empower Oversight, senior policy counsel Eric Epstein is overseeing the drafting. Epstein worked as the agency’s Phoenix field office’s division counsel during Operation Wide Receiver, which was a precursor of Operation Fast and Furious.

“The fact that inside ATF sources are blowing the whistle on this draft rule is an indication of what a difficult position it would put the ATF in,” Tristan Leavitt, president of Empower Oversight, said. “ATF agents did not sign up to go after law-abiding citizens for private sales protected under the Second Amendment of the Constitution.”

In an open records request filed January 31 and sent to attorney general Merrick Garland and ATF director Steven Dettelbach, Leavitt argued that such an expansive rule would treat all private citizens the same as federal firearms licensees and circumvent the separation of powers in the constitution.

The separation of powers, Leavitt asserted, grants “all legislative powers” to Congress while requiring that the president “take care that the laws be faithfully executed.” 

“To the extent such a rule prevents the private sale of firearms, it would also clearly violate the Second Amendment to the United States Constitution, which declares that ‘the right of the people to keep and bear Arms, shall not be infringed,’” he said.

The request

In the January 31 letter, Leavitt wrote that, on March 14, 2023, President Biden issued an executive order that required the Department of Justice (DOJ) to “clarify the definition of who is engaged in the business of dealing in firearms, and thus required to become Federal firearms licensees (FFLs), in order to increase compliance with the Federal background check requirement for firearm sales.”

“President Biden announced the purpose of the executive order was to ‘move us as close as we can to universal background checks without new legislation,’” Leavitt wrote. “The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) subsequently submitted a proposed rulemaking to the Department of Justice, which attorney general Merrick Garland approved on August 30, 2023.”

The draft rule was open for comments from September 8 to December 8, 2023, and received immense comment, Leavitt wrote, adding that many interpreted it to require that any private citizen who sells even a single firearm online might be required to register as an FFL, despite statutory language excluding those “who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

Now the administration is at it again, Leavitt asserted.

“Empower Oversight has now learned through two sources in the ATF that at the direction of the White House, the ATF has drafted a 1,300-page document in support of a rule that would effectively ban private sales of firearms from one citizen to another by requiring background checks for every sale,” he wrote. “ … Such an expansive rule that treats all private citizens the same as federal firearms licensees would circumvent the separation of powers in the Constitution, which grants ‘all legislative Powers’ to Congress while requiring that the President ‘take Care that the Laws be faithfully executed.’

“Nor would such a rule only hurt law-abiding firearms owners,” he wrote. “The lessons of the Ruby Ridge and Waco standoffs should make clear that attempting to enforce such an expansive regulation could endanger countless ATF field agents who are forced to serve as the face of the Biden administration in going after private firearms owners for constitutionally-protected firearms sales.”

To get to the truth of what was happening, Empower Oversight filed a records request for the period from January 1, 2023, to the present, asking for “all emails to or from ATF senior policy counsel Eric Epstein which include the terms ‘ban,’ ‘private sale,’ ‘universal background,’ and ‘gun control.’”

The group also asked for any and all records containing communications between DOJ and ATF regarding the implementation of executive order 14092; for any and all records containing communications between DOJ or ATF and the White House regarding the development and/or implementation of Executive Order 14092; and for any and all records containing communications between DOJ and ATF referring or relating to regulating or banning the sale of firearms between private individuals.

Finally, Leavitt asked for any and all records containing communications between DOJ or ATF and the White House referring or relating to regulating or banning the sale of firearms between private individuals.

In a lengthy post on X, Leavitt pointed out that the Obama administration had pursued the same goals.

“Barack Obama tried this on gun control in 2013 and 2016,” Leavitt posted. “He infamously asserted, ‘We are not just going to be waiting for legislation ... I’ve got a pen and I’ve got a phone.’ During the 2020 campaign Kamala Harris also promised this kind of unilateral executive action on guns.”

Leavitt predicted that, like Biden’s student debt bailout plan, such a sweeping rule would almost certainly be struck down in the courts. 

“It’s thus hard to view it as anything other than a cynical play to energize his base in a presidential election year,” he posted. “NPR reported as much: Harris has ‘been highlighting what the White House has been doing on its own ... The VP’s team says these events will happen more as Harris travels on the campaign trail, where she’s been specifically trying to drum up support...’”

Last year’s executive order

In his executive order last year, Biden did indeed lay out universal background checks as a principal goal of his administration.

“It’s just common sense to check whether someone is a felon, a domestic abuser, before they buy a gun,” Biden said in announcing the executive order.

Biden said the executive order would expand public awareness campaigns about “red flag” laws and their benefits. So-called red flag laws, otherwise known as Extreme Risk Protection Orders (ERPOs), enable people to notify law enforcement officials if they see or hear anything they believe is indicative of an individual being a threat or about to engage in harmful activities.

Law enforcement, family members, and even medical professionals in some states can then petition the court to temporarily limit an individual’s ability to buy or possess a firearm. 

Courts can thus order firearms to be seized even though the gun owner has not been charged or convicted of a crime, and often without any knowledge that a petition has been filed with a court and without any chance to mount a defense before the firearm is confiscated.

“So more parents, teachers, police officers, health providers, and counselors know how to flag for [the] court that someone is exhibiting violent tendencies, threatening classmates, or experiencing suicidal thoughts that make them a danger to themselves and others and temporarily remove that person’s access to firearms,” Biden said.

Biden said the executive order also ramped up the administration’s efforts to hold the gun industry accountable. 

“It’s the only outfit you can’t sue these days,” Biden said, though he left out or forgot about the pharmaceutical industry’s protection from vaccine lawsuits. “It does that by calling out for an independent government study that analyzes and exposes how gun manufacturers aggressively market firearms to civilians, especially minors, including by using military imagery.”

The executive order also directed the attorney general to publicly release firearms inspection reports of firearms dealers who were cited for violations of the law. 

“That way, policymakers can strengthen laws to crack down on these illegal gun dealers and the public can avoid purchasing from them,” the president said.

Finally, Biden said, the executive order improves federal coordination to support victims, survivors, and their families and communities affected by mass shootings in the same way FEMA responds to natural disasters.

Biden was careful to frame his top priority — universal background checks, either through legislation or through the use of executive orders to increase the numbers of those subject to them — as one of public safety

“This executive order helps keep firearms out of dangerous hands, as I continue to call on Congress to require background checks for all firearm sales,” he said. “And in the meantime — in the meantime, my executive order directs my attorney general to take every lawful action possible to move us as close as we can to universal background checks without new legislation.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.