Lankford, Lee & Colleagues Protect Second Amendment by Demanding Transparency from ATF

OKLAHOMA CITY, OK – Senator James Lankford (R-OK) joined Senator Mike Lee (R-UT) and 18 of their colleagues in a letter to the US Attorney General and the Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) expressing concern over the ATF’s use of secret internal guidance to enforce regulations that are not openly published.  This secret guidance has been used to justify the seizure of lawfully owned property.

The letter reads in part, “We write to express our grave concern over the Bureau of Alcohol, Tobacco, Firearms & Explosives’ (ATF) continued pattern of enforcing secret guidance.  This secret guidance was brought to our attention by those who have received recent threatening letters where the ATF makes blanket threats based on the recipient allegedly purchasing and possessing various firearms accessories, none of which are illegal based on any statute or regulation.”

“We find the ATF’s attempt to conceal its interpretations of the law disturbing.  In a free society, ‘Every citizen is presumed to know the law.’  Thus, as the Supreme Court has said, ‘it needs no argument to show that all should have free access’ to [the law’s] contents.”

The letter continues, “With this attempted secret regulation, the ATF shows an abject disregard for the fundamental principles of due process and accountable governance. Federal agencies cannot enforce the law in this manner.”

Aidan Jonhnston, Director of Federal Affairs of Gun Owners of America said of the effort, “The ATF will stop at nothing to criminalize gun owners and attack the Second Amendment. This time, their scheme is to criminalize solvent traps—tools that gun owners use while cleaning their firearms. By mislabeling solvent traps as silencers, the ATF makes it clear that they not only do not understand how firearms really work, but also that they are willing to turn law-abiding Americans into criminals overnight to push their anti-gun agenda.”

Joining Lankford and Lee are Senators Jim Risch (R-ID), Thom Tillis (R-NC), Rick Scott (R-FL), Cynthia Lummis (R-WY), Mike Braun (R-IN), Cindy Hyde-Smith (R-MS), Marsha Blackburn (R-TN), Kevin Cramer (R-ND), John Boozman (R-AR), Bill Hagerty (R-TN), Lindsey Graham (R-SC), John Hoeven (R-ND), John Barrasso (R-WY), Mike Crapo (R-ID), Chuck Grassley (R-IA), Ben Sasse (R-NE), Tim Scott (R-SC) and Ted Cruz (R-TX).

Full text of the letter is HERE and below:

Attorney General Garland and Acting Director Richardson:

We write to express our grave concern over the Bureau of Alcohol, Tobacco, Firearms & Explosives’ (ATF) continued pattern of enforcing secret guidance. This secret guidance was brought to our attention by those who have received recent threatening letters where the ATF makes blanket threats based on the recipient allegedly purchasing and possessing various firearms accessories, none of which are illegal based on any statute or regulation. These letters are in addition to an internal ATF email ordering seizure of various items and referring to those in possession as “defendants.” We find this pattern of secret regulation incredibly troubling.

In the letters, the ATF claims–without offering any explanation as to why–that popular item known as “solvent traps” and “forced reset triggers” (FRT) are unregistered silencers and machine guns, respectively, and therefore subject to regulation under the National Firearms Act (NFA), 26, U.S.C. §§5801-5872. One such letter threatens that “[p]ossession of any of the unregistered silencer devices could result in prosecution for criminal violation of Federal law” and instructs recipients to contact their local ATF field office within 30 days to “coordinate the abandonment of any silencers.” The transfer or possession of an unregistered silencer or machine gun carries with it a penalty of up to ten years in prison.

Similarly, an ATF email dated January 26, 2022 ordered ATF agents to search out and demand “voluntary” surrender of two models of forced reset triggers, or otherwise “[i]f the manufacturer/seller refuses to abandon the items, please take custody of the items, and seize them for forfeiture.” The ATF email referred to those law-abiding citizens in possession of such triggers as “defendants.” Despite the significant criminal consequences attached to the unlawful manufacture, sale and possession of NFA items, ATF has never issued any public guidance differentiating a silencer from a solvent trap, or informing the public that it considers certain forced reset triggers to be machine guns. Notwithstanding the glaring absence of any such public guidance, the classification of a solvent trap as a silencer is contrary to the plain language of 18 U.S.C. §921(a)(24).

In addition to the ATF’s threatening letters, it has recently come to our attention that ATF has formulated secret internal guidance documents “to assist ATF personnel tasked with differentiating so-called ‘solvent-traps’ from firearm silencers” and to assist “with identifying certain machinegun conversion devices commonly referred to as” FRTs.5 These documents contain summaries of the standards that the Firearms and Ammunition Technology Division purportedly uses to classify items. Disturbingly, ATF made these documents available only to those tasked with enforcing the law, rather than those who strive to comply with it. Indeed, ATF marked these documents as “Law Enforcement Sensitive” to conceal them from the firearms industry and the American public.

We find the ATF’s attempt to conceal its interpretations of the law disturbing. In a free society, “Every citizen is presumed to know the law.” Thus, as the Supreme Court has said, “‘it needs no argument to show that all should have free access’ to [the law’s] contents,”8 including, in addition to the text of a statute, to those materials which constitute “the authentic exposition and interpretation of the law.”

Our government, including the ATF, has a duty to inform Americans what they must do to comply with federal law, especially when the conduct involves the exercise of an enumerated constitutional right and violations could result in a penalty of up to ten years in prison. The use of “secret” law is anathema to our system of government. The United States Court of Appeals for the Seventh Circuit said, “[a] designation by an unnamed official, using unspecified criteria, that is put in a desk drawer, taken out only for use at a criminal trial, and immune from any evaluation by the judiciary, is the sort of tactic usually associated with totalitarian régimes.” Yet, that is exactly what the ATF has done in this and other cases.

With this attempted secret regulation, the ATF shows an abject disregard for the fundamental principles of due process and accountable governance. Federal agencies cannot enforce the law in this manner.

In light of the above, we respectfully request that the US Department of Justice and the ATF provide the following no later than March 25, 2022:

• All internal instructions, directives, or guidance to any and all employees and/or contractors assigned to or working with the Firearms & Ammunition Technology Division containing criteria, factors, or “indicators” to be used to make the determination of whether a “solvent trap” is classified as a silencer subject to regulation under the National Firearms Act.
• All internal instructions, directives, or guidance to any and all employees and/or contractors assigned to or working with the Firearms & Ammunition Technology Division containing criteria, factors, or “indicators” to be used to make the determination of whether a “forced reset trigger” is classified as a machine gun subject to regulation under the National Firearms Act.
• Copies of all publications through which the ATF has made such guidance and criteria available to ATF Agents, including all Firearms & Ammunition Technology Division Technical Bulletins issued regarding “solvent traps” and “forced reset triggers”, including copies of each.
• An explanation as to how these bulletins are used by law enforcement.
• An explanation as to why documents with similar guidance have not been made available to the public.

The ATF is charged by law with enforcing the nation’s federal firearms laws and providing regulatory oversight of the firearms industry. ATF simply has no authority to conceal public guidance and then enforce it on unsuspecting Americans. The ATF must issue only those regulations authorized by Congress, provide notice of the proposed regulations, and then provide the American people with an opportunity to comment before a new rule goes into effect. 

Sincerely,