by Stephen Bryen
In the United States there are some important gaps in gun law coverage. One of them concerns silencers.
President Trump says that he will seriously look at banning silencers. Even if they are ultimately banned, there are a lot of silencers around, and law enforcement agencies throughout the United States are denied important information needed for criminal investigations and prosecutions.
Silencers are regulated under a law passed in 1934 called the National Firearms Act (NFA). NFA covered weapons include machine guns, short-barreled rifles, short-barreled shotguns any other concealable weapons (other than pistols or revolvers). The Act also covers explosive devices like hand grenades, missiles and poison gas weapons. The NFA is administered by the Alcohol, Tobacco and Firearms (ATF), part of the Department of Justice.
Under the ATF rules, you can apply to the ATF to buy a silencer. DeWayne Craddock, the Virginia Beach shooter who was a municipal engineer for the city, killed twelve people with guns that were legally registered and a silencer or silencers he got approved by the ATF. Craddock had no criminal record, and he was never treated for mental illness and he appears to have followed the rules in buying his guns, the high capacity magazine for the .45 caliber pistols and the silencer which he separately got through approval of the ATF.
High capacity magazines are only controlled by eight states. The Federal Assault Weapons Ban of 1994 included limits regarding magazines that could hold more than ten rounds, but that law has expired. Virginia considered but rejected a ban on high capacity magazines, but even if they had passed such a law, high capacity magazines could be bought in other states, and state-wide bans are difficult if not impossible to enforce.
Silencers (also called Suppressors) are another matter. ATF has strict controls and it can take up to a year to get a license to own a silencer. But while it is time consuming, people who sell silencers are willing to help buyers get them legally. For example, Dakota Silencer (“Silencer’s Made Easy”) devotes its web site to assisting customers.
Yet even if silencers are obtained legally, law enforcement is blocked from getting any information about their acquisition from the ATF.
Michael Boyer, an ATF spokesperson told the web-based Free Beacon, “We are not able to disclose to the public, or even to the local police department, whether the silencer has been registered or has not been registered or was lawfully possessed or was not lawfully possessed. There’s no exception written into the statute that would allow disclosure even if the individual is deceased.”
Section 5848 of the NFA law says: “No information or evidence obtained from an application, registration, or records required to be submitted or retained by a natural person in order to comply with any provision of this chapter or regulations issued thereunder, shall, except as provided in subsection (b) of this section, be used, directly or indirectly, as evidence against that person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence.” Section (b) says that if you furnish false information then the information from the applications and registration can be used for prosecutorial purposes. But it is left to ATF to decide if false information was provided and that could take quite some time and review by ATF and Justice Department lawyers.
Section 5848 is a very strange provision, since it undermines any law enforcement effort to see if the silencer or any other covered item was obtained legally, and by whom (since the silencer or other weapon may have been obtained by another person acting on behalf of the shooter).
It is clear that, as it stands, the National Firearms Act really has little purpose if law enforcement has no access to the information. Furthermore, it isn’t clear that ATF in its extensive check on the applicant is obliged in any way even to check with the FBI which runs the National Crime Information Center (NCIC).
The National Crime Information Center is the nation’s most extensive criminal justice information system. NCIC contains over 24 million records in 14 files and provides user agencies with information on items such as missing and wanted persons, stolen vehicles, and criminal history records. Over 19,000 law enforcement and other criminal justice agencies in the United States and Canada can access NCIC through their computer systems. The Center was established in 1967. Outside of the NFA, Federal as well as state and local gun registration requires an NCIC background check. ATF and the FBI are both part of the Department of Justice. Yet Section 5848 may be interpreted as blocking ATF from consulting a database run by the FBI, a law enforcement agency.
Congress could, and should amend the NFA by striking Section 5848 from the law. On an emergency basis, the President could, and should waive enforcement of Section 5848 just as he did previously regarding bump stocks which modify semi-automatic rifles to fire automatically. It is important to note that the President directed the Department of Justice to act on bump stocks (aka bump fire devices) by redefining the term “machine gun” in the NFA to include bump fire devices.
In regard to Section 5848 a different finding is needed which is that law enforcement agencies (Federal, state and local) can have legal access to information collected by ATF on controlled devices and equipment, such as silencers by directing ATF not to enforce Section 5848 in the interest of public safety until such time as Congress reconsiders Section 5848 and revamps legislation regarding this section.