By Tom Odom, Esq.
I just completed my review of the first batch of public comments that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) posted to the electronic docket at http://www.regulations.gov. The first batch consists of the ninety-six comments posted September 12. As of midnight September 15, 373 comments (including the 96) had been received at http://www.regulations.gov/#!docketDetail;D=ATF-2013-0001
Please note that each comment is assigned a unique identification number (distinct from the “tracking number”) that begins with the prefix ATF-2013-0001-. I will use the four digits that follow that prefix in the following discussion to invite your attention to points raised in specific comments.
Only one comment seemingly supported ATF’s proposed rule to impose additional restrictions on the making and transfer of firearms regulated under the National Firearms Act (“NFA”), and that comment was limited to the assumption that the NFA only applied to machine guns.  Perhaps the author meant that he opposed the proposed rule because the NFA, in fact, includes other types of firearms as well but, if that was the meaning, it was inartfully stated.
A. Preliminary Matters
The fact that one comment was filed in the name of “Concerned Citizen”  and another in the name of “Tony G”  raise a question. I do not know whether the authors asked ATF to withhold their names from publication and ATF assigned the pseudonyms or whether the authors submitted the comment in those names. Remember, the Notice of Proposed Rulemaking (“NPR”) states that comments must be signed. It outlines a procedure for you to follow if you do not want personal information posted. Please use the procedure specified in the NPR rather than assume a fictitious name.
With only a few exceptions, the comments were respectful and avoided personal attacks. Given how strongly many of you feel about these issues, almost all of you managed to show great restraint while expressing your opposition.
Other than the one comment referenced in the first paragraph above, one or two additional comments could be misquoted as suggesting support for the ATF proposal. I think that when read in full it is clear that that author is in opposition and that somewhere along the line a typographical error resulted in the omission of “not” from a key phrase or sentence, like the assertion that Chief Law Enforcement Officers (“CLEOs”) would sign forms for anyone.  As a result, I urge you to carefully proofread your comment before submitting it. If, upon reviewing how your comment has been posted it is clear to you that a word has been dropped, you may care to advise ATF of the correction.
B. Issues Raised in the Comments
The first batch of comments raised a wide variety of issues. I apologize in advance as my effort to put so much information into a fixed number of categories necessarily requires some over-simplification. As you can see from my quotes from some of the posted comments, details and factual bases for the authors’ views add to the persuasiveness of comments. This first pass through the comments examines the broad-based attacks on the flawed premises underlying ATF’s proposed rule. Over the next few days, I will post similar summaries of the comments relating to other issues.
1. Registered NFA Firearms Are Not Used in Crimes
Many comments assert that there is no history of NFA firearms being used in commission of a crime. E.g., 0066, 0084. Presumably the authors meant that registered NFA firearms had not been so used. E.g., 0044, 0085, 0089. Others who were more restrained in their representation of the facts asserted that there was no recent history of such misuse, e.g., 0020, 0089, asked rhetorically when such misuse last happened, e.g., 0090, 0013, or pointed out that ATF’s NPR failed to identify a single such usage,.
In 25 years of practicing criminal law I have never had a case, or even heard of one, where the crime was committed with a properly licensed class lll firearm. [The] Press release from the administration doesn’t even cite one, only the successful intervention under the existing system. 
Other comments pointed to no more than a very small number of such incidents. See 0017 (one), 0081 (one), 0041 (almost nonexistent), 0023 (“very few, if any”), 0046 (no “appreciable or even measurable quantity”), 0040 (two), 0049 (“very rarely”), 0062 (not used in “street crime”), 0066 (not used in assault or murder).
While NFA weapons as a whole are perceived by the American public as dangerous, their use in crime is exceedingly rare. Legally-owned (ie, NFA-registered) machine guns have been used in only two murders since 1934, one of which was committed by a police officer. A previous director of the ATF testified before Congress that fewer than ten registered machine guns have ever been used in any type of crime (including non-violent offenses such as failing to notify ATF of address changes, etc.). The criminal use of other legally-owned NFA weapons is similarly rare. 
“In the 79 years the NFA has been in place, only 2 crimes have been committed by legally owned weapons subject to regulation by the NFA.” 
Other comments observed that the existing, strict regulatory regime applicable to lawfully acquired NFA firearms meant that criminals seek firearms from other, illegal sources, rather than comply with registration and tax requirements.
A criminal is not going to spend tens of thousands of dollars for a NFA firearm, pay a $200.00 stamp fee to the BATF, HAVE IT REGISTERED, then wait six month for the transfer to be approved to take possession of the firearm. A criminal by its very definition will not obey this regulation and will obtain firearms through nefarious means. 
And: “Simply put, criminals don’t mail in NFA creation and transfer forms.”  And:
The Title II weapons used in prominent crimes, such the AK-47s used in the North Hollywood shootout of 1997, have universally been illegally-owned or illegally-converted weapons. 
See also 0011, 0013, 0014, 0022.
2. Legal Entities Serve Legitimate Purposes and Are
Not Used by Criminals to Facilitate Access to NFA Firearms
Many comments pointed out the legitimate use of legal entities such as trusts, corporations, and LLCs. Such purposes included estate planning, e.g., 0059, 0061, 0081, 0082, permitting members of the same family to each use NFA firearms, e.g., 0051, 0057, 0059, avoiding liability due to the “constructive possession” doctrine, e.g., 0031, and, most commonly, overcoming CLEO refusal to sign forms, e.g., 0051, 0058, 0087.
Some comments pointed out the absence of any record of a crime conducted by someone using a NFA firearm to which he had gained access as a “responsible person” of a legal entity. “While I cannot say for certainty that felons are not using trusts to illegally purchase weapons, one thing that is certain is that they are not committing crimes with them.” 
To make this change it should be required by the ATF to prove that the US public has a real risk to their safety. This should be done by a non-biased third party that shows past harms done by NFA items purchased through a living trust or corporation, as well as projected future risks based on NFA items used in crimes to create a projected trend. Laws should be made on pure scientific fact and not emotions or political pressures. After a scientific study is done then a new proposal should be written and put up for review.
This change should not go into effect because no proof is presented that there is a real need for it. 
Other comments made the same point by observing that ATF failed to identify any example of such misuse in its NPR.
The White House press release attempts to justify this proposal by asserting that in 2012 alone, BATFE “received more than 39,000 requests for transfers of these restricted firearms to trusts or corporations.” Yet BATFE does not cite even one instance in which any of those registered firearms was used to commit a crime. Instead, BATFE’s proposal cites a case in which it denied a transfer of a silencer to an individual who it determined was ineligible to possess a regulated firearm and then denied a subsequent transfer to a trust created by the same person. 
And: “There is nothing in this proposal that indicates how these regulations would deter one, single criminal, nor has the ATF supplied even one single example of how or where a firearm transferred via a trust or corporation was used in violation of current US law.”  See also 0004, 0015, 0022, 0031, 0058, 0068, 0075, 0084. 0094.
I have been unable to locate any evidence of any prohibited person being prosecuted for being in possession of an NFA-listed item while being a member of a trust; the standards involving possession of a Firearm by a prohibited person would have been followed and the fact that the prohibited person was a member of a trust would have been noted in the trial.
If there is no evidence of such a person being found to both be in possession of a restricted item — the National Firearms Act is a restrictive act — calls into question why the changes to an NFA Trust would be required. 
Others pointed out the absurdity of the assumption criminals would use such an approach.
[T]he idea that criminals will use trusts to buy machine guns is absurd. First, they cost more than a car anymore. Second they have to pay the transfer tax of $200. Third, with the wait time for the form 3 approval and then the even longer wait for the approval of the form 4, the “criminal” will have to wait 8-9 months, and that is if there are no hiccups. 
See also 0035. And: “The money and time spent in trying to prevent a statistically minute occurrence doesn’t appear worth it. Do you really think that someone that is planning on permitting a crime with an NFA weapon is going to use this route to obtain it?”  “What felons are paying $200 tax to skirt gun regulations that take 9 months to a year to approve? They’ll just create/buy the weapons and skip the paperwork and the tax entirely.”  “No gang banger is going to go thru the excruciating process of paperwork, tax stamps and waiting just to get something — they will buy it illegally.”  See also 0005, 0007, 0030. 0069, 0095.
[T]hese people who seem to be guilty of mass murders with weapons don’t spend much time planning and acqui[re] the weapons quickly so they can act on the short term plan. Any long term planners for large mass murders . . . will find black market weapons to use and not waste time requesting authority to purchase machine guns with BATFE permission. 
3. ATF’s Proposal is Pointless
Many of the comments pointed out that the ATF proposal would do nothing to accomplish any legitimate objective. These observations took several forms including those referenced above. In addition, comments noted that it is already a violation of law for a prohibited person to possess a NFA firearm, whether individually or through a trust or other legal entity. E.g., 0010, 0011, 0014, 0035, 0036, 0039, 0049, 0060, 0064, 0071, 0094. Other comments added that it is already a violation of federal criminal law for a trustee (or any other “responsible person” associated with a legal entity) to permit a prohibited person to possess a firearm if he has even “reasonable cause” to believe the person is prohibited, 18 U.S.C. § 922(d) E.g., 0020, 0049.
4. Legitimate Uses of NFA Firearms
Some comments addressed legitimate uses for firearms subject to NFA regulation, most notably the use of suppressors. E.g., 0031, 0062, 0064, 0081. Comments pointed out the benefit of suppressors to avoid hearing loss, particularly in the context of hunting and self-defense. “The suppressor does not make the firearm silent as shown in Hollywood movies. They will reduce the noise from about 140db to 100db, no way near “silent”. . . . I am surprised that the EPA and OSHA do not require them to reduce noise pollution.”  See also 0064, 0081.
Other comments pointed out that certain NFA firearms were mostly collectables. E.g., 0029, 0047, 0082.
5. ATF’s Cost/Benefit Analysis is Flawed
Some comments addressed the cost/benefit analysis reflected in the NPR. These comments pointed out the costs, even as estimated by ATF, could not be justified. E.g., 0055. Other comments observed that ATF failed to account for additional significant costs such as the lost taxes from fewer NFA transfers and on the income lost on the sale of NFA firearms. E.g., 0002, 0030, 0034, 0058.
I will look to more of the details of the cost/benefit analysis in one of the next posts.
Other comments observed that ATF could better use its resources to investigate and prosecute persons who sought to obtain firearms and were denied. E.g., 0045, 0071. “76,000 failed background checks in 2011 and 3 people went to jail. This alone says the ATF isn’t interested in combating crime.” 
6. ATF Relies on a False Premise Regarding CLEO Refusals and the
Consequent Increased Use of Legal Entities to Hold NFA Firearms
Although ATF acknowledges that CLEOs have refused to sign forms, ATF asserts that the reasons CLEOs do so is because of concern for civil liability. Although many comments addressed the issue of CLEO refusals, not one supported ATF’s asserted reason. Instead, comments pointed out that, at most, CLEOs were concerned about political liability and many CLEOs simply disagreed with the legislative judgment that NFA firearms were appropriate for private citizens. E.g., 0040, 0042, 0048, 0052, 0061, 0064, 0074, 0075, 0083, 0085, 0086, 0087. “CLEOs refuse to sign due to politics, not for fear of liability; enough said.” 
I live in a county in Kansas where our CLEO is opposed to the possession of Class lll items by civilians. He simply will not approve them, for anyone.I am a lawyer, a CCH licensee, a CCH instructor, among other things. That my CLEO should be given the power to deny me the right to own a particular type of weapon because of his political persuasion is, simply, just not right. 
“This allows anti-gun sheriffs and police chiefs to block ownership of NFA weapons just because they don’t like them.”  “I can recall more than one encounter with local LEO’s whose opinion is that no civilians should not possess firearms, period.”  Some CLEOs ” won’t sign off on the form 4’s because ‘they don’t think you should have it.’ That is the exact quote I got my local CLEO. He is an anti-gun police chief and doesn’t want anyone owning these items when it is perfectly legal to do so in my state.” 
The CLEOs I know who refuse to sign applications — not on the basis of an individualized determination with respect to the applicant but on a blanket or policy basis — do so primarily because they do not like the idea of any private citizens having firearms, regardless of what the U.S. Constitution, Federal statutes, and State law say on the matter. 
Other comments suggested that the CLEO certification requirement was misused by CLEOs for improper purposes such as “the ability of CLEOs to demand campaign donations or favors in exchange for signatures on ATF Forms.” 
Some comments pointed out that the premise that a CLEO would have information not available to ATF itself is a relic of an earlier time. E.g., 0067.
As an example of the irrationality of the requirement, I live in a city of 2 million people. The idea that a law enforcement officer, judge, or other CLEO would have any knowledge of my existence whatsoever, and further have knowledge of anything specific that a national database would not have, is beyond all rationality. 
And: “The odds of someone like the Chief of the NYPD knowing every individual within their jurisdiction is infinitesimally small.” 
Other comments observed that ATF mistakenly operates on the assumption that its definition of CLEOs supersedes arrangements under State law that may serve to greatly restrict the officers available to sign forms. E.g., 0082.
As such comments explain, the shift toward increased use of legal entities is a consequence of ATF’s failure to eliminate the CLEO certification requirement for individuals once NICS and other sources rendered that system essentially obsolete. E.g., 0031, 0054, 0058, 0062, 0067, 0074, 0075, 0087. Instead of changing the text of the certification in a manner that would accomplish nothing given the actual reasons CLEOs refuse to sign and expanding that requirement to apply to all responsible persons of legal entities, many comments advocated the complete elimination of the CLEO certification requirement. E.g., 0031, 0085, 0086.
[N]o regulatory text denying the CLEO bears any liability for the certification is likely to change the practice of most CLEOs. They will continue to refuse to sign simply as a matter of personal objection to congressional policy. Expanding the applicability of the CLEO certification requirement to all responsible persons of legal entities will merely empower CLEOs who currently refuse to sign applications for individuals to more-thoroughly frustrate Federal and State law. 
Some comments suggested, as an alternative, a CLEO notification procedure.
A far better solution would be to follow the same procedure used when a business or individual applies for a Federal Firearms License were the applicant attests that they sent a copy of their application to the CLEO, providing the name and address where the FFL application was sent. This procedure, mirroring the FFL application process, would not place an undue administrative burden on local law enforcement or create the opportunity for a de facto ban to be created through failure to act by the CLEO within a jurisdiction without action by the legislative branch of the state government. 
See also 0086, 0087. Other comments suggested that the CLEO should be required to sign unless he has a valid reason to refuse. E.g., 0047, 0058, 0065, 0083.
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Look for forthcoming posts to this blog examining some of the other issues raised by the comments.