The ATF is a federal law enforcement agency that focuses on gun crimes. It also inspects gun dealers and manufacturers to make sure they follow the law. Despite this incredibly important mission, the ATF flies under the radar. To start, its full name—the Bureau of Alcohol, Tobacco, Firearms and Explosives—sounds more like a wild Saturday night than a law enforcement agency. It’s also overshadowed by its bigger cousins at the Federal Bureau of Investigation and the Drug Enforcement Agency.
The ATF has also been a lightning rod for controversy. It famously entered the zeitgeist with a 1993 standoff at a religious compound in Waco, Texas, where a group calling themselves the Branch Davidians were stockpiling guns, which ended in the deaths of four ATF agents and over 60 church members. Most recently, the bureau came under fire for an Obama-era operation where agents allowed illegal gun purchases to proceed in an effort to uncover gun trafficking networks along the Arizona-Mexico border. Its name, Fast and Furious, became a byword for scandal after one of the guns turned up at the scene of the murder of a U.S. Border Patrol agent. Underneath those dramatic headlines are budget and leadership problems that have plagued the agency for years.
Almost everyone agrees that the ATF is in trouble. But this obscure federal agency may be President-elect Joe Biden’s best chance at having a real impact on gun policy—if he takes the opportunity to restore the beleaguered agency’s reputation and revive its mission. In fact, experts told The New Republic that the ATF may be Biden’s best bet at leaving a mark on federal gun policy without having to rely on an intransigent Congress. All agreed that the bureau has faced significant problems over the years, but they outlined a series of proposals they said Biden could push to breathe new life into the bureau and address gun violence.
Meanwhile, representatives of the firearms industry said they worry that the incoming administration may use the ATF to punish what they say are law-abiding businesses.
The debate about gun violence has fixated on new legislation to close what advocates see as loopholes in federal law, from an assault weapons ban to universal background checks. Biden’s own plan for tackling gun violence says “legislation” 19 times and “ATF” four. While those plans meet the harsh reality of a broken and ineffective Congress, some experts say there is critical work that can still happen at the agency level.
“I think it’s really important for the Biden administration to prioritize ATF,” said Chelsea Parsons, who heads gun violence prevention policy at the left-leaning Center for American Progress. “ATF has been hamstrung by a limited budget, by all of the [legal] limitations on how it can perform its functions, and by a lack of confirmed leadership,” she added. (The Biden transition team declined a request to interview members of its ATF review team, and it did not respond to multiple requests for comment.)
The first thing that the Biden administration can do to help the ATF is to simply increase its budget. This would require appropriations from Congress, but almost everyone The New Republic spoke with agreed that it should be a top priority.
The ATF’s budget went up by just 6 percent from 2010 to 2020 after adjusting for inflation, according to an analysis by CAP. The think tank found that gun sales and manufacturing skyrocketed over that same period. Less money and more work is a recipe for burnout, especially when the stakes are high. “Imagine working in a bureaucracy like that where you’re just getting flogged constantly for things you don’t have money for,” said retired ATF Special Agent Mark Jones, who has consulted with CAP on issues related to gun violence.
These limitations also affect the bureau’s ability to carry out its mission. The ATF had 770 inspectors to cover the more than 53,000 retail gun dealers and 13,000 firearms manufacturers in the U.S. in 2019, according to an analysis by CAP. Those staffing shortfalls have meant that the bureau can’t inspect gun dealers as often as it would prefer.
“The costs were exceeding the amount that the budget was going up,” Thomas Brandon, who was acting director of ATF from 2015 to 2019, said about his time at the bureau. “The fiscal people would use the expression ‘erosions to base.’”
But Congress hasn’t just kept ATF’s budget low. The agency only had acting directors from 2006, when Congress made the position Senate-confirmed, to 2013, when the Obama administration got B. Todd Jones’s confirmation through by the skin of its teeth. There hasn’t been another Senate-confirmed ATF director since Jones stepped down in 2015.
“B. Todd Jones was certainly not an advocate for the firearms industry,” said Mark Oliva, public affairs director of the National Shooting Sports Foundation, which represents the firearms industry. “But it’s also made it very difficult to get through some of the things that need to be done at the ATF. And we recognize that.”
The National Rifle Association didn’t take a position on Jones’s nomination in 2013, and the National Shooting Sports Foundation came out in his favor, clearing the way for some Republican Senators to cross party lines. (The NRA didn’t respond to a request to be interviewed for this story.)
Oliva is less optimistic about the chances for the Biden administration to get a nominee through the Senate. He pointed to a letter from 16 prominent Republican senators to ATF and the Justice Department last month criticizing a recent regulatory decision on whether or not a particular weapon qualified as a short-barreled rifle. (More on that in a second.) Any nominee is likely to face tough questions about those regulatory moves from the Senate, Oliva said. “I think it would be very difficult [to confirm someone], given the Senate’s appetite for what they’re seeing happening in the ATF right now,” he said.
Still, the ATF can make plenty of meaningful changes without waiting for Congress. For starters, many experts contend that the ATF has been too focused on pursuing low-level gun offenses instead of going after major traffickers.
About 67 percent of federal weapons prosecutions from October 2018 to April 2019 were for unlawful possession by a felon, according to an analysis by the Transactional Records Access Clearinghouse.
“You know, he’s got a couple of rocks in his pocket, and he’s got a pistol in his pants. Okay. Yeah. That’s bad. I agree it’s bad. Is that worthy of a federal agency to spend its time and resources?” Mark Jones, the former ATF agent turned CAP consultant, said. “And I did a lot of this work [as an ATF officer], is why I’m saying I don’t think it’s really what ATF should necessarily be doing.” Instead, Jones and other advocates would like to see the bureau go after big trafficking operations that divert guns from lawful commerce to the illegal market—often undermining state and local gun control laws in the process.
Biden’s gun plan calls for the ATF to release an annual report on trafficking. Experts say a clear federal law against gun trafficking is even more important. But that would take an act of—well, you know who. “The day Congress can come up with a firearms trafficking statute, I think, will help ATF’s mission and will enhance public safety,” Brandon, the former ATF director, said.
The ATF can also do more to crack down on a sprawling market for accessories, which include a number of devices that gun manufacturers have invented that, when integrated with certain widely available firearms, can make those weapons perform like guns that require a special license and registration—even if those devices weren’t originally designed for this purpose.
The most famous example is a bump stock, which can be used to fire a semi-automatic rifle nearly as fast as a fully automatic one. The ATF banned them under pressure from President Trump in March of 2019 after their use in an October 2017 mass shooting in Las Vegas that left 60 people dead and hundreds injured.
Another device called a forearm brace was originally designed to help people with disabilities fire rifles one-handed. But critics say it effectively turns a legal rifle into an illegal short-barrelled rifle that’s much easier to conceal. The ATF recently cracked down on one manufacturer over its use of forearm braces only to back off for 60 days while the decision is under review. The firearms industry and Senate Republicans have pushed back hard against regulating forearm braces like short-barreled rifles.
Then there are devices such as “80% lowers” and ghost-gun kits, which can allow people to build working firearms at home. The kits require special equipment to build, but the resulting weapons can be difficult or impossible for law enforcement to trace. Buying one of the kits doesn’t require a background check, and “ghost guns” made this way have been used in serious crimes.
The ATF raided a major ghost-gun company this month after determining that it hadn’t been complying with federal law. Rumors have circulated on gun-industry sites that the Biden administration intends to tackle both pistol braces and ghost guns. The administration has not confirmed those rumors, though ghost guns do figure prominently in Biden’s gun violence plan.
While almost everything associated with the ATF is controversial, there is one aspect of their mission that is politically red hot: They handle gun industry inspections and shutting down problem dealers. For years, the ATF has downgraded recommendations by its own inspectors to shut down gun stores that have repeated serious violations such as selling weapons to felons or not running the required background check. At the same time, Jones said, the center of gravity within the ATF shifted after Waco. The part of the bureau responsible for inspecting gun dealers and manufacturers “lost an enormous amount of power,” Jones said, while the law-enforcement side of the bureau took over.
The result is that firearms inspectors have few resources and little pull. That’s made it difficult for the ATF to oversee an industry with immense political power. “It’s hard for me to imagine how the industry could be treated any more gently by ATF than they’re treated right now,” Jones said.
Oliva, who represents the firearms industry, pushed back on that. He pointed to a Democratic presidential debate last year where Biden called gun manufacturers “our enemy.” He’s afraid the new administration will use the ATF to close down dealers that mess up on paperwork.
“Instead of using it as a regulatory agency, they’ve said that they would use the ATF to shut down businesses for even minor clerical errors,” Oliva said.
There may be room for compromise. Biden could work to streamline the complicated paperwork dealers have to keep and digitize some firearms industry record-keeping—though the latter would require a change in federal law. In exchange, he could direct the ATF to crack down on dealers that commit the kinds of serious violations that endanger public safety.
Biden hints at some of this in his gun plan, which promises to “secure sufficient funds for the Justice Department to effectively enforce our existing gun laws, increase the frequency of inspections of firearms dealers, and repeal riders that get in the way of that work.”
Oliva didn’t address any of those specific proposals. But he said that, in general, the industry is willing to come to the table if it feels respected. “We’ve done it,” Oliva said of working with Biden when he was vice president. “We’re willing to do it again. But you’ve got to come with a respect for the fact that we have God-given rights.”