A federal appellate panel in Washington was cool to a challenge to the government’s demand that gun dealers in four border states turn over information about bulk sales of semi-automatic rifles. Mere weeks after a gunman used a semiautomatic rifle to murder 20 children and six adults in an elementary school in Newtown, Conn., two gun dealers from Arizona and a firearms association based in Newtown garnered little sympathy during oral arguments before three judges of the U.S. Court of Appeals for the D.C. Circuit on January 9. Senior Judge Harry Edwards and Judge Judith Rogers dominated the hearing with questions for Richard Gardiner,the lawyer representing gun dealers J&G Sales Ltd. and Foothills Firearms LLC. Edwards, in particular, appeared perplexed by his argument that the Bureau of Alcohol, Tobacco, Firearms and Explosives was demanding any records that dealers weren’t legally required to maintain. The argument, Edwards told Gardiner, is “one you’re losing everywhere.” At issue were “demand letters” the ATF issued in 2011 to thousands of gun dealers in four states that share borders with Mexico. Last year, U.S. District Judge Rosemary Collyer upheld the demands, writing, “Congress has effected a delicate balance between ATF’s regulation of firearms and the right to privacy held by lawful firearm owners. ATF’s demand letter did not disturb that balance.” The letters require the dealers to report any sales of more than one semi-automatic rifle to the same person at one time or during five consecutive business days. ATF officials said the demand is part of their efforts to thwart firearms trafficking along the border. Rules long on the books have required dealers to report the sale of multiple pistols or revolvers. Gardiner, a solo practitioner in Fairfax, Va., argued that the letters were outside the agency’s authority. The ATFis essentially trying to create to a national firearms registry, his side argued in court papers—something Congress has expressly prohibited. He added that the mandate would be unduly burdensome; for example, the government has demanded information about weapons type of action or ammunition feeding source. “They’re having to create a whole new record,” he said. James Vogts of Chicago’s Swanson, Martin & Bell, representing the Newtown-based National Shooting Sports Foundation, based in Newtown, attended the hearing but did not argue. The association sued separately but the challenges have been combined. In a brief, Vogtsargued the case “presents an opportunity to better define the limited circumstances under which ATF can lawfully demand federal firearms licensee records by letter.” The line “at which ATF oversteps its administrative authority and intrudes on the legislative domain remains blurred,” he wrote. Edwards and Rogers didn’t seem entirely convinced that the ATF was demanding anything new of the gun dealers. Edwards noted that federal appellate courts in Richmond and San Francisco have sided with the government in similar challenges. Department of Justice civil division attorney Michael Raab defended the demand letters, which were issued to more than 8,000 dealers in California, Arizona, New Mexico and Texas. “This is really not an onerous burden,” he argued, calling the ATF’s action “a valid exercise of the agency’s broad demand letter authority.” Edwards said that nothing in the record suggests that there’s any confusion about which firearms the multiple-sale reporting requirement applies to. Certainly, Richard Gardiner, the ATF received no “flood” of calls from dealers confused on that point. The Brady Center to Prevent Gun Violence, represented by Arnold & Porter, filed a friend-of-the-court brief in support of the government. “Multiple sales reports are effective and efficient tools for highlight potential indicators of long gun trafficking,” the brief argued. An ATF agent, the center’s attorneys continued, “can quickly examine” the reports for evidence of an “unusually large or an unorthodox pattern of multiple sales.” The appeals court didn’t immediately rule on Wednesday morning. Mike Scarcella is a reporter for The National Law Journal, a Legal affiliate based in New York.
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