Opposition to ATF Rulemaking 41P: Silencerco’s Odd Suggestion

By Tom Odom, Esq.

I was surprised to see that Silencerco posted a suggested letter for individuals to submit to ATF with respect to the current rulemaking.  There are serious problems with ATF’s proposal but, to read the suggested text Silencerco posted 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, Silencerco 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.  Why in the world 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 take a step backward in the efficiency of processing applications — not a minor consideration given the current backlog.  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.

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 an 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-regulated items in the same manner?

I seriously have to wonder why I am devoting hundreds of hours opposing ATF’s proposal when the very regulated industry that has the most to lose is so short-sighted.  If it were not for the right of individual citizens to acquire items that both Congress and the applicable State legislature approved for ownership by private individuals, I might be content to watch ATF give Silencerco what it asked