Last week many people in the industry met in Washington DC to discuss issues and concerns with 41P. Besides discussing what happened leading up to 41P, the main topic of discussion was regarding that 41P this was a legal issue within rulemaking and that inappropriate or inaccurate responses could cause problems. The most important part of any response is accuracy and addressing the issues with facts in such a manner as to allow for an appeal if the ATF approves their current recommendations.
Within the next week, I expect to make my comments public. While many are waiting until the last moment to present as complete a set of comments as possible, I would like to provide proper guidance to many who our clients and others whom read our blog on a regular basis. Our comments will cover many topics and come with some details on how to use them to create your own comments but we would never suggest that you simply copy someone else's comments even with very minor modifications. Remember comments are part of the rule making process and not a popularity contest. If you want to see our comments when they are published and be kept up to date on 41P and our efforts, I would suggest that you subscribe to our blog by clicking the subscribe button in the upper right of this page.
I was surprised to see that a major silencer company appears to be sending proposed letters to their dealers or others in the industry to provide others with a suggested letter for individuals to submit to ATF with respect to the current rule making. Remember this is rule making and not a popularity vote. There are serious problems with ATF's proposal but, to read the suggested text the Silencer Company has provided to others which is being posted on the Internet you would think they merely opposed extending the requirement for a chief law enforcement officer ("CLEO") to "gun trusts." Let's be clear about a few points.
First, this Silencer company suggests that you state: "Requiring background checks for trusts would ensure NFA items do not fall into the hands of criminals and makes law enforcement sign off unnecessary." Let's keep in mind that the proposed rule is not limited to trusts but also encompasses corporations, LLCs, and other legal entities. Shouldn't the objection to ATF address the CLEO certification requirement for all legal entities?
Second, by raising the issue of CLEO certification requirements and even suggesting a change in the wording of the certification, ATF has opened the door to addressing the CLEO certification requirement with respect to individuals. If you are opposing an extension of CLEO certification to trusts would you not make the point that the existing certification requirement for individuals should be eliminated?
Third, it is not clear to me why one would endorse "background checks for trusts" without explaining what that would entail. There are different ways to do background checks but the suggested language could be understood as endorsing the proposal that all "responsible persons" for legal entities submit photographs and fingerprints. Why support that approach? As many, many of the comments submitted to ATF have already observed, a NICS check should be more than sufficient. By requiring photographs and fingerprint cards, ATF is taking a step backward in the processing of applications. Practically all the effort put into the eForms initiative will have been wasted, as the eForms are not set up to handle applications that require photographs and fingerprints. In fact eForms are not available when those are required.
Fourth, as many comments already submitted to ATF make clear, the definition of a "responsible person" is absurdly broad and vague. Will a settlor of a revocable or irrevocable trust who does not serve as either a trustee or a beneficiary have to submit photographs and fingerprints? Will individuals designated as successor trustees who have not assumed the powers of an acting trustee have to do so? Will beneficiaries who are not entitled to receive any distribution from the trust until the death of the settlor, possibly decades in the future, have to do so? Does it matter that some of those beneficiaries may be infants? And what will happen if just one of that extended group of people who do not have the authority to possess trust assets happens to be a prohibited person? Will the entire application be denied because someone who at some future date may receive the cash value of the firearms has his name on the trust as a conditional beneficiary?
Fifth, as some comments submitted to ATF have already argued, there is no reasonable basis to regulate silencers to the same extent as some other NFA firearms. Silencers are legal in thirty-nine States and legal for use in at least some form of hunting in more than thirty States. In certain settings they are the only practical means of hearing protection. They provide protection from hearing loss that in just about any other context the government would mandate. The medical literature on hearing loss due to recreational shooting strongly advocates the use of silencers. While ATF lacks the authority to exempt silencers from the NFA, why in the world would a company that makes them not urge you to demand ATF impose minimal regulation upon them even if ATF were unwilling to treat other NFA items in the same manner?
Remember that now is not the time to be shortsighted. Remember we are dealing with items that are legal to acquire, possess, and in most State legislatures and that the US Congress has said we have the right to own possess and use these items for more than 75 years. Lets hope that we do not end up with unnecessary regulations because of the shortsightedness of a few.