Just 48 hours before his premiere gun-fighting agency took a public flogging in Congress last month, Attorney General Eric Holder sent a memo that escaped much public notice but left federal prosecutors with an unmistakable message.
People who buy guns at U.S. shops with the intent of secretly transferring them to someone else–a tactic known as “straw buying” that is at the heart of Mexican border violence–should face new, stiffer prison sentences, Holder declared.
“We encourage every district to carefully review recent enhancements to the Sentencing Guidelines that are aimed at straw purchasers,” said the memo, which was personally initialed by Holder.
It was one of several quiet efforts by the Obama administration to toughen current gun regulations through administrative processes in the aftermath of two starkly different events in Arizona that have spotlighted gun violence: the shooting of Rep. Gabrielle Giffords and a bungled investigation in which the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) knowingly let more than 1,700 semiautomatic weapons flow through the hands of straw buyers for the Mexican drug cartels.
Administration officials told Newsweek and The Daily Beast that starting as early as next week, Obama will begin a series of changes designed to tighten regulations and penalties under current laws—bypassing a fight in Congress with the pro-gun National Rifle Association in the process.
As early as next week, Obama will begin a series of changes designed to tighten regulations and penalties under current laws.
The changes will include:
- Strengthening the national electronic system by collecting new information to make background checks for handgun buyers simpler and faster, leaving an electronic paper trail under a law named for James Brady, Ronald Reagan’s press secretary who was wounded in the 1981 assassination attempt on the president.
- A new reporting requirement that federally licensed gun shops report any person who tries to buy two long-arm weapons near the Mexican border over a five-day period.
- Tougher sentencing guidelines for straw buyers that Holder’s department pushed through procedural hoops at the U.S. Sentencing Commission earlier this year.
But the low-key approach hasn’t escaped the notice of the NRA, which says the administration’s tack won’t help crime-fighting efforts and could backfire in next year’s elections, when the gun lobby is again likely to flex its sizable political muscle.
“If they want to do something serious about stopping crime, they can do the tried-and-true rules and go after criminals. They’re not,” says Wayne LaPierre, executive vice president of the NRA. “They’re collapsing prosecutions across the U.S. The idea of putting more forms on the honest people is ridiculous. They need to start on something the criminals don’t like, which is arresting and incarcerating.”
LaPierre said he believes Obama is bypassing lawmakers with these changes because of legislative obstacles. “I don’t think he’s got any support in Congress for doing this. If he does this, it’s going to be bad politics in election time. Law-abiding people are sick of proposals like this that line them up and let the criminals go free.”
Obama has shied away from gun control since taking office, even as pressure mounted after the Giffords shooting to make good on his sweeping promises as a candidate to increase regulation and restore a Clinton-era ban on assault weapons.
The White House did little in Obama’s first two years in office, turning down a request from ATF last year to expedite the long-gun reporting requirements as an emergency order as the Mexican border violence escalated.
Even after Giffords was shot in the head and six people were killed in January during a gunman’s rampage, the president said little about gun regulation, barely mentioning the idea during a memorial for the other victims.
On March 13, though, Obama disclosed in an Arizona Daily Star op-ed that he was considering a national electronic system to speed up background checks in a way that leaves an electronic paper trail.
“We should make the system faster and nimbler. We should provide an instant, accurate, comprehensive and consistent system for background checks to sellers who want to do the right thing, and make sure that criminals can’t escape it,” the president wrote.
Gun-control advocates consider the current background check under the Brady law to be somewhat ineffective and riddled with loopholes. Federally licensed dealers are required to conduct background checks, but recreational sellers at gun shows–some of whom Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, says go to a different show every weekend and have hundreds of guns in their possession–aren’t required to conduct checks. Some of the background checks never even make it to the feds, as in the Virginia Tech massacre. Seung-Hui Cho, the shooter, failed to disclose information about his mental health on his background questionnaire, but the case was never sent to Washington.
“The major thing they can do is to reform the background-check system,” Helmke said. “They’re looking at major options. The big loophole in the Brady bill is that not everyone is required to do a background check, so you have a lot of people selling guns without anyone knowing.”
White House press secretary Jay Carney hinted last week that “common-sense measures” designed to “improve Americans’ safety and security while fully respecting Second Amendment rights” are in the works. Carney suggested the changes would be made in consultation with “stakeholders on all sides” to figure out the best solutions. LaPierre said, however, his group hasn’t been consulted yet.
A White House official, speaking on condition of anonymity, said the regulatory changes will be introduced separately, without a large ceremony, and certainly not with a branded name that could turn into attack ads, such as “White House Gun Control Initiative of 2011.”
When informed of the administration’s preparations, several members of Congress bristled at the plan.
“Democratic government was always supposed to be messy, but it’s based on checks and balances,” says Rob Bishop (R-Utah), who sits on Congress’s Second Amendment Task Force. “Going only through executive action is not good for his relationship with Congress…Those ideas are going to have a great deal of comments and can be abused especially if done by executive order.”
The ATF has claimed for years it is hampered by current gun regulations because U.S. dealers don’t have to report most sales to the agency and the bureau is allowed to review a gun dealer’s records only once a year. That’s why in December, ATF proposed an emergency rule to have gun dealers in Southwest states nearest the Mexican border file reports on any person buying multiple semiautomatic rifles over a five-day span. The White House’s Office of Management and Budget in February nixed ATF’s effort to expedite the rule, putting it on the regular track.
That rule is expected to be among the changes that Obama enacts in the next several weeks, according to administration officials.
The gun-control debate, however, has been further complicated by a congressional investigation pressed by Republican Sen. Charles Grassley and the House Oversight and Government Reform Committee into the ATF’s own mistakes in an investigation code-named “Fast and Furious.” In that probe, agents were instructed to let suspected straw buyers purchase hundreds of weapons without being interdicted. More than 800 of the weapons that ATF let pass ended up at subsequent crime scenes on both sides of the border, upsetting Mexican officials and even Obama, who said serious mistakes appeared to have been made.
The congressional inquiry has become a rallying cry for conservative critics of the ATF, raising new questions about that agency’s ability to effectively fight gun trafficking that is fueling the violence along the Mexican border.
Holder’s memo last month urging tougher sentences for straw buyers was sent to law enforcement and federal prosecutors just two days before Rep. Darrell Issa, who heads the House oversight panel, held a high-profile hearing in mid-June in which ATF agents openly criticized their bosses for letting “guns walk”—to straw buyers and across the border—in the bungled case.
The policy was a significant departure from an October 2009 memo sent by the office of Holder’s top deputy at the time, which had suggested federal agents and prosecutors expand their focus beyond straw buyers and interdicting guns and to try to make bigger cases against the Mexican cartels at the heart of the border violence.
“Given the national scope of this issue, merely seizing firearms through interdiction will not stop firearms trafficking to Mexico. We must identify, investigate and eliminate the sources of illegally trafficked firearms and the networks that transport them,” the office of then Deputy Attorney General David Ogden wrote in the memo, marked “law enforcement sensitive.”
Ogden’s memo was sent just days before the ill-fated Fast and Furious program began, and some view it as having given tacit approval for the tactics used in that case. Holder has since ordered ATF to interdict all weapons and pursue straw buyers.
Justice officials say Holder’s new memo wasn’t specifically connected to Issa’s hearing or the ATF scandal, but rather reflected efforts dating to March in the aftermath of the Giffords shooting to toughen existing sentences for the middlemen in the Mexican gun cartels, who have been difficult to prosecute and get short prison sentences even when they are caught.
UPDATE: The Justice Department announced Monday afternoon the program that would require gun vendors in states that border Mexico – California, Arizona, New Mexico and Texas – to report multiple purchases of high powered rifles within a five day period. The program will be administered by ATF.
In response, Rep. Darrell Issa called the new policy a “political maneuver” in a statement. “It’s disconcerting that Justice Department officials who may have known about or tried to cover-up gunwalking in Operation Fast and Furious are continuing attempts to distract attention from clear wrongdoing,” Issa said.