Alan Korwin

Alan Korwin

More About: Gun Rights

The Uninvited Ombudsman

PHOENIX -- July 25, 2011
by Alan Korwin
The Uninvited Ombudsman

According to four BATFE agents familiar with the planned Fast and Furious
gun-smuggling "fix," the bureau plans to release a "demand letter" by the
end of this week, insisting that gun dealers in the four Mexico-border
states begin reporting multiple rifle sales to the bureau.

All multiple rifle sales made to the same buyer within a five-day period
will have to be reported beginning on August 14, on a form to be announced,
according to the agents. The order will exclude rifles in .22 caliber, and
rifles without detachable magazines. The agents acknowledged that
congressional action, lawsuits, an injunction or other court orders might
forestall the implementation of the hastily concocted scheme. Such
preventive measures are already underway.

The rumored executive order to require gun dealers in California, Arizona,
New Mexico and Texas to begin reporting multiple rifle sales to BATFE will
not be issued. A previous Page Nine report that referred to the expected EO
now appears incorrect. It is possible that the uproar over the program
caused the administration to change its approach, and put all the heat on
BATFE to "enact" law without Congress. The EO was widely reported and

An exhaustive examination of statutory authority under which BATFE is
required to operate revealed no legitimate power to demand these records,
though the agents claimed they do have authority (two younger ones said
they have no control over the process, and were simply following along).
When questioned if they would consider resigning if asked to implement an
illegally introduced rule, the agents all either declined to answer or said
no, they would not resign.

Because a buyer will have to be identified to show that the sales reflect
purchase by one person, the record collections will be a gun registry tied
to gun ownership, which is strictly forbidden under federal law. No
requirement to destroy these records exists, since no authority to collect
the records exists. The BATFE agents said they would not be keeping the
records, because they "lack authority," but could not identify a time frame
in which the registry information would be destroyed, or any audit trail.

When pressed, the senior official identified a statute that supposedly
conveyed authority for the daring plan. The citation is to 18 USC
§923(g)(5)(A) which states:

"Each licensee shall, when required by letter issued by the Attorney
General, and until notified to the contrary in writing by the Attorney
General, submit on a form specified by the Attorney General, for periods
and at the times specified in such letter, all record information required
to be kept by this chapter or such lesser record information as the
Attorney General in such letter may specify."

This does not confer the needed authority, because "all record information
required to be kept by this chapter" does not include multiple sales of
long guns to the same person in a five-day period. The agent disagreed. In
fact, Congress specifically excluded such information when it enacted, by
due process, a statute requiring similar information for handguns in the
same law, in 18 USC §923(g)(3)(A):

"Each licensee shall prepare a report of multiple sales or other
dispositions whenever the licensee sells or otherwise disposes of, at one
time or during any five consecutive business days, two or more pistols, or
revolvers, or any combination of pistols and revolvers totalling two or
more, to an unlicensed person."

In addition to the creation of this illegal reporting requirement, illegal
gun-owner registry, with unknown details and no public control over the
rule-making process, it amounts to record keeping specifically banned under
the Firearm Owners Protection Act, 18 USC §926(a)(2):

"No such rule or regulation prescribed after the date of the enactment of
the Firearms Owners Protection Act [5/19/86] may require that records
required to be maintained under this chapter or any portion of the contents
of such records, be recorded at or transferred to a facility owned,
managed, or controlled by the United States or any State or any political
subdivision thereof, nor that any system of registration of firearms,
firearms owners, or firearms transactions or disposition be established."

Like so many laws the federal government writes, this one declares that
these acts cannot legally be done, but provides no specific punishment for
perpetrators, such as those running this scheme inside BATFE. Laws could be
written with teeth, to control bureaucrats. Instead of saying, "No one may
collect this information," the law could say, "Anyone who collects this
information shall go to prison and pay a fine." Given the common abuses now
prevalent in government, such laws have been needed for a long time, on a
state and local level as well as federally, some legislators say. Any
legislator unwilling to draft laws that way, allowing "officials" to do
whatever they please without consequence, deserve to be removed from
office, according to leading experts.

FBI Implicated in Gun-Smuggling Operation
FBI Implicated in Gun-Smuggling Operation

In other news, an insider source investigating BATFE's gun smuggling to
vicious Mexican drug cartels, reveals that several of the so-called "straw
purchasers" were prohibited possessors, or had suspended drivers' licenses
and other problems that should have prevented them from passing the NICS
background check.

Three of the straw purchasers, now indicted, had criminal histories,
including a pending class 3 felony charge for burglary, an order of
protection, a domestic-violence conviction, and a felony for resisting
arrest, later reduced (and criminal damage charge dropped). Any of these
should have prevented, or at least delayed purchases when they hit the FBI
NICS computer. One defendant even had a CCW permit, under circumstances
that seem suspicious but remain unclear.

Whistleblower BATFE agent John Dodson apparently indicated that the NICS
system had these buyers flagged for special treatment, and that when a sale
request came through, it was routed to a special FBI office that approved
the purchases, according to William La Jeunesse at FOX News. Dodson's prior
statements are absolutely incriminating, and riveting:

This implies that the FBI may have been complicit in the scheme, allowing
BATFE's mules to get possession of guns when they should have been blocked.
How people with disqualifying criminal records or a suspended driver's
license could have repeatedly gotten through the tightly run NICS system is
difficult to otherwise explain.

Some of the buyers were young adults living at home with parents, and with
no visible means of support. How they got the tens of thousands of dollars
in cash they repeatedly spent has not yet been investigated, but is sure to
come out. The tax and IRS angles are also missing from all reports, so far.
IRS is often vigorous on tracking down unreported income and huge cash
transactions, but is not involved as far as published reports go. BATFE
installed video cameras at some of the gun shops and have the
straw-purchase smugglers' transactions recorded.

No information is available on how the data BATFE hopes to collect will be
used to prevent gun smuggling. Since the information will be gathered by
the very bureau responsible for smuggling guns into Mexico, confidence in
the scheme is very low. BATFE claims the scheme will generate 18,000
records per year, but how they could possibly know that is unclear, since
this is illegal and has never been done before.

Congressional hearings on the BATFE gun-smuggling program continue
tomorrow, Tuesday, July 26, 2011, 10 a.m. East coast time, 7 a.m. here in
Arizona. The effect on the gun reporting and registration scheme, if any,
is impossible to determine ahead of time.


Tangential but important --

According to Wikipedia, BATFE has digitized out-of-business records from
gun dealers, with several hundred million records in its hands:

4. Out of Business Records. Data is manually collected from paper
Out-of-Business records (or input from computer records) and entered into
the trace system by ATF. These are registration records which include name
and address, make, model, serial and caliber of the firearm(s), as well as
data from the 4473 form -- in digital or image format. In March, 2010, ATF
reported receiving several hundred million records since 1968. [9]


One final note --

BATFE began circulating a flier at the Crossroads of the West gun show in
Phoenix this past weekend, the state's biggest gun show, threatening gun
owners with arrest if they bear arms within 1,000 feet of a school.

Virtually all populated areas are within 1,000 feet of a school.

The gun-free-school-zones act, a feel-good do-nothing law passed by
president Clinton, has languished basically unused for two decades, but
essentially criminalizes almost all gun owners, creating tens of millions
of unenforceable felonies daily. If Mr. Obama wants an under-the-radar gun
ban, here it is on a platter, already on the books. This law MUST be dealt
with by our legislators, and right quick.

The Crossroads gun show takes place within 1,000 feet of a school zone.

See the maps, and the simple amendment that would correct this travesty.


This is a special report from The Uninvited Ombudsman,
Alan Korwin, author of the Page Nine newsmedia watchblog.

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