What the ATF is, what it can do and why gun owners distrust it

Ask ten Americans what the ATF does and you will get a rich harvest of answers. Guns. Bombs. Waco. Something about cigarettes. One fellow will say it is part of the FBI. Another will say it is the part of the government that sells permits. The correct answer is that it is a federal law enforcement agency inside the Department of Justice, whose name includes four products and whose reputation includes a few things nobody puts on a letterhead.

The name alone is a perfect little case study in federal government. Alcohol, Tobacco, Firearms and Explosives: the world's most unusual shopping list, kept together by a series of historical accidents and then given a badge. If you want to understand why gun owners distrust the agency, you have to understand what it is and where it came from, because most of the suspicion has a paper trail. And, in fairness, you also have to understand what the agency actually does well, because the case against it is stronger when it is made honestly.

Where the ATF came from

The agency's family tree runs through the Treasury Department, because the federal government's oldest source of revenue was the tax on alcohol and tobacco. Collecting those taxes meant policing the people who tried to avoid them. During Prohibition, enforcement of the alcohol ban was handled by a series of federal units in and around Treasury, and after repeal in 1933 the work of policing liquor taxes stayed with the revenue side of the government. When Congress passed the National Firearms Act of 1934, it chose a tax to regulate machine guns and short-barreled weapons (the reasons are in Why the National Firearms Act of 1934 taxed guns instead of banning them), so the job of administering it went to the tax collectors, because the law was a tax law. That is the origin of the firearms mission in the Treasury's revenue agents.

Over the decades the unit was reshuffled several times. Its firearms duties grew with the Gun Control Act of 1968 (see Inside the Gun Control Act of 1968 and the rules you still follow today) and a federal explosives law in 1970. In 1972 the unit became a bureau of its own, the Bureau of Alcohol, Tobacco and Firearms, still inside Treasury.

The big change came after the attacks of September 11, 2001. The Homeland Security Act of 2002 moved the bureau out of the Treasury Department and into the Department of Justice, effective January 2003. It added "Explosives" to the name. The tax-collecting side, the part concerned with alcohol and tobacco revenue, stayed in Treasury as a new agency, the Alcohol and Tobacco Tax and Trade Bureau. So today the ATF is a law enforcement agency answering to the Attorney General.

What the ATF actually does

Strip away the mythology and the job list is specific:

• Licenses. It issues federal firearms licenses to dealers, manufacturers and importers, and licenses for explosives. Under the 1968 Act, you generally need a license to be "engaged in the business" of dealing in firearms.
• Inspects. It inspects licensees to check whether their records and sales follow the rules, including Form 4473, the form every buyer fills out at the counter (see what a federal background check covers, and what it never did).
• Keeps the National Firearms Act registry. It maintains the registration and transfer record for machine guns, short-barreled rifles and shotguns, silencers and similar items, and approves each transfer.
• Traces guns. When police recover a firearm used in a crime, they can ask the ATF to trace it. The agency's National Tracing Center, in Martinsburg, West Virginia, follows the serial number back from manufacturer to wholesaler to dealer to first retail buyer. Notice what the trace does not do: it follows a paper trail dealer by dealer, and it does not look at a database of who owns what. That distinction matters a great deal, and I will come back to it.
• Investigates. Agents work cases involving illegal firearms trafficking, the illegal possession of firearms by prohibited persons, arson, explosives and bombings, and the use of guns by violent offenders.
• Interprets. It issues rules and classification letters on what counts as a particular kind of firearm or accessory. This is the function that gets it into the most trouble, as the bump-stock saga shows (see Garland v. Cargill and why an agency cannot rewrite a law by redefining a word).

A trace, step by step

The trace is the most misunderstood thing the agency does, and it is the best illustration of the registry fight, so here is how it works. This is a hypothetical, labeled as one: police in a town recover a pistol at a crime scene and send its make, model and serial number to the National Tracing Center.

1. The center contacts the manufacturer, who looks up the serial number and says which wholesaler or dealer received the gun.
2. The center contacts that business, which checks its own records and names the next dealer, or the licensed dealer who sold it at retail.
3. The retail dealer pulls the Form 4473 from its files and names the buyer on the day of the sale.
4. The trace ends. It tells the police who bought the gun from a dealer, the first time it was sold at retail. It does not tell them who has the gun now, who sold it privately in the years between, or whether the original buyer did anything wrong. Often the original buyer sold or lost the gun long ago, or had it stolen.

If a dealer has closed, its records go to the ATF, which is why the agency keeps a large store of paper from out-of-business dealers. That is the entire mechanism. There is no central file of "who owns what," and the 1986 law says there may not be one. The fight over private sales, covered in the registry question hiding inside every universal background check bill, is largely a fight over whether to extend this paper trail to a new kind of transaction.

The limits Congress wrote in 1986

A fair account of the ATF has to include the part where Congress, after years of complaints, put a fence around it. The Firearm Owners Protection Act of 1986 (see How the 1986 Firearm Owners Protection Act passed with a machine gun ban) was a reform bill driven by gun owners who thought the agency had gone too far. Among other things, it:

1. Required that a violation of the main licensing and record-keeping rules be committed willfully, which raised the bar for prosecuting a paperwork mistake.
2. Limited routine compliance inspections of a licensed dealer to one a year, unless there is a specific reason to go back.
3. Barred the government from using records required of dealers to set up a national registry of firearms, owners or transactions. (This is the reason the trace goes dealer to dealer by phone and paper. It is also the reason the registry argument will not die; see the registry question hiding inside every universal background check bill.)

Gun owners remember 1986 as a victory. The agency remembers it as a set of handcuffs. Both are right.

Why gun owners distrust it

Let me start with a concession. Many ATF agents are career professionals doing difficult and dangerous work, and a lot of the agency's work against armed felons, arson and bombings is exactly what the public wants done. Distrust of an institution is not an insult to every person in it.

But the distrust did not come from nowhere. Three episodes do most of the work.

Waco, 1993. On February 28, 1993, ATF agents tried to serve a search and arrest warrant at the Branch Davidian compound near Waco, Texas, on suspicion of illegal weapons violations. A gunfight broke out. Four ATF agents and several members of the group were killed. A siege by the FBI followed and lasted 51 days, and on April 19 a fire destroyed the compound; dozens of people died, including children. Who fired first and who set the fire have been argued ever since, and I am not going to resolve those disputes here. What is not in dispute is that a weapons-violation warrant ended in one of the deadliest law enforcement disasters in modern American history. Official reviews, including one by the Treasury Department and congressional hearings in 1995, examined and criticized the planning and conduct of the raid. For many gun owners, "Waco" is shorthand for an agency that came to the door with too much force and too little judgment.

Operation Fast and Furious, 2009 to 2011. This was a case run out of the ATF's Phoenix field division. Agents investigating gun trafficking to Mexican drug cartels let suspected "straw purchasers" buy guns and leave with them, apparently to follow the guns up the chain. Many of the guns were lost. On December 14, 2010, Border Patrol agent Brian Terry was killed in a gunfight in Arizona, and two firearms from the operation were found at the scene. The Justice Department's Inspector General issued a report in September 2012 that found serious failures of judgment and supervision at the ATF and at the U.S. Attorney's office in Arizona, and recommended discipline for a number of officials. The House voted in June 2012 to hold the Attorney General in contempt over documents about the operation. The upshot, for gun owners, is a specific and ugly irony: an agency that tells the public that guns in the wrong hands are a menace deliberately allowed them to walk.

Rule changes by interpretation. Time after time, the agency has reversed its own earlier readings of the law, and each reversal lands on the lawful owner who relied on the first reading. The bump-stock case is the clearest example. When the government tells you in writing that an item is legal, then changes its mind and gives you a deadline to destroy it, you do not need a theory of conspiracy to feel uneasy. You just need a memory.

Add to those the general worry that the NFA registry and the dealers' records add up to a list of gun owners. The statute says they must not be assembled into a national registry, and the agency says it complies. But a skeptic can say that records exist, and that a statute is only as strong as the next Congress.

The case for keeping the ATF

The other side deserves its day, and here is its best form.

1. The work is real. Someone has to license dealers, run traces, investigate trafficking and bombings, and administer the NFA. Those jobs do not vanish if the agency does.
2. Expertise is hard to rebuild. The agency's examiners and its tracing and explosives capabilities took generations to build. Scattering them risks losing what works.
3. The scandals are old news in a big institution. Reforms have followed each one. Judge today's agency by today's conduct.
4. Dismantling is not the same as reforming. Whatever else the ATF is, it is an agency Congress created and can direct. Better oversight, narrower rules and clear statutes would solve more than a reorganization.

The case for folding it into another agency

And here is the opposing case, the one you will hear on talk radio and in some congressional offices.

1. Mission overlap. The FBI and the Drug Enforcement Administration already investigate violent crime, trafficking and explosives. A small agency with a narrow list of duties might be better run as a division of a larger one.
2. A fresh start. Waco and Fast and Furious are part of the agency's institutional memory. Some argue the culture is hard to change from the inside.
3. Accountability. A larger agency would have one more layer of management between a field office and a disaster. Skeptics would answer that this adds bureaucracy rather than judgment.
4. The name tells you something. Nobody designing a federal law enforcement agency from scratch would combine alcohol, tobacco, firearms and explosives into one bureau.

Neither case settles it, and I'll tell you what I think. I think the more important question is not the letterhead. It is the law. Folding the ATF into the FBI would give the same rules to a different set of agents. If the rules are the problem, changing the mailing address will not fix them. What will fix them is Congress writing clear, narrow statutes and refusing to leave the details to guidance letters. That is what Congress Should Write the Laws, and Other Radical Ideas From Article I is about, and it is what Chevron Is Gone, and Here Is What Loper Bright Changed for Everyone makes possible.

How to deal with the agency as an ordinary owner

For most readers, the ATF touches your life in three places: the dealer's counter, the NFA process if you ever buy a suppressor or similar item, and the rules on what you may import or transport.

• At the counter, you fill out Form 4473 truthfully. Lying on it is a federal crime, so read each question.
• For NFA items, follow the application process exactly and keep your approved paperwork with you.
• For an ATF classification letter or rule that affects you, get it in writing, keep a copy and watch for changes. This is boring, and it is the reason a bump-stock owner could prove what the government once told him.
• If you are a dealer, learn the 1986 limits and know your rights during an inspection. Talk to a lawyer who knows firearms law.

The bottom line

• The ATF is a Justice Department law enforcement agency that licenses dealers, inspects them, keeps the NFA registry, traces guns and investigates trafficking and bombings.
• Congress fenced it in with the 1986 reforms: willfulness, limits on inspections, and a ban on a national registry made from dealer records. Know them, because they are your protection.
• The distrust has a record: Waco in 1993, Fast and Furious and the 2012 Inspector General's report, and a habit of changing rules after owners relied on them.
• Moving the agency to another department would not change the rules it enforces. The lasting fix is clear statutes written by Congress, with real oversight.
• Keep your paperwork, get ATF answers in writing, and tell your representative which rules you want written into law instead of left to guidance.