Tapped Out

Setting the record straight, and moving on.

By Dave Kopel

National Review Online. February 5, 2003 9:50 a.m.

In 1986, Congress enacted the Firearms Owners' Protection Act (FOPA), which reduced some of the powers belonging to the Bureau of Alcohol, Tobacco and Firearms (BATF). Since then, however, antigun journalists have waged an unceasing campaign against FOPA. The most recent effort — but not the most credible one — comes from "Tapped," the web log of The American Prospect, a Boston political magazine.

The story begins a few weeks ago, when the Washington Monthly published an article, "License to Kill: How the GOP helped John Allen Muhammad Get a Sniper Rifle."

At the request of Instapundit, I critiqued the article, and engaged in a dialogue with author Brent Kendall.

The dialogue brought out what I considered to be several inaccuracies in the story, starting with Kendall's claim that the Bushmaster rifle is a "sniper rifle." Mr. Kendall also wrote that "ATF has no power to temporarily suspend a dealer's license, or impose a fine." Actually, 18 U.S. Code section 922(t) states that if a firearms dealer transfers a firearm without complying with the National Instant Check System, then BATF may, through administrative action, "after notice and opportunity for a hearing, suspend for not more than 6 months or revoke any license issued to the licensee under section 923, and may impose on the licensee a civil fine of not more than $5,000."

The Washington Monthly lambasted Republicans and the NRA for restricting BATF powers by enacting FOPA in 1986. I responded that FOPA was enacted in response to BATF abuses:

The important thing that the Wash. Monthly leaves out from its description of why Congress limited BATF's enforcement powers was BATF's egregious abuse of civil liberties under FOPA. Some of the details are in 'No More Wacos,' and also in my Oklahoma City Law Review article, which is available at www.davekopel.org.

"The short version is that a Congressional investigation officially concluded that seventy-five percent(!!) of BATF prosecutions were constitutionally improper."

The Oklahoma City Law Review article and my book No More Wacos go into more detail about the history of BATF abuses. As my note for Instapundit plainly said, the 75-percent figure is one datum of evidence about BATF abuse, but far from the only one.

The 75-percent figure comes from a unanimous 1982 report of the Senate Subcommittee on the Constitution. After detailing a litany of statistics and case studies showing extreme and extensive abuse by BATF, the subcommittee's report turned to BATF's counterarguments:

The rebuttal presented to the Subcommittee by the Bureau was utterly unconvincing. Richard Davis, speaking on behalf of the Treasury Department, asserted vaguely that the Bureau's priorities were aimed at prosecuting willful violators, particularly felons illegally in possession, and at confiscating only guns actually likely to be used in crime. He also asserted that the Bureau has recently made great strides toward achieving these priorities. No documentation was offered for either of these assertions. In hearings before BATF's Appropriations Subcommittee, however, expert evidence was submitted establishing that approximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations. (In one case, in fact, the individual was being prosecuted for an act which the Bureau's acting director had stated was perfectly lawful.) In those hearings, moreover, BATF conceded that in fact (1) only 9.8 percent of their firearm arrests were brought on felons in illicit possession charges; (2) the average value of guns seized was $116, whereas BATF had claimed that "crime guns" were priced at less than half that figure; (3) in the months following the announcement of their new "priorities", the percentage of gun prosecutions aimed at felons had in fact fallen by a third, and the value of confiscated guns had risen. All this indicates that the Bureau's vague claims, both of focus upon gun-using criminals and of recent reforms, are empty words.

On January 22, "Tapped" posted an item complaining about my use of the 75-percent figure. For example, "Tapped" pointed out that the words "abuse rate" were my own paraphrase, not the subcommittee's words. I guess some people would disagree about whether prosecutions of "ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations" constitutes abuse, or whether "75 percent" constitutes a "rate."

The Senate subcommittee got its figure of "approximately 75 percent" from a study conducted by Vernon Acree, a former commissioner of customs. The National Rifle Association commissioned Acree's study. As I noted in No More Wacos, Acree studied cases in Maryland and Virginia, and later told a reporter that he did not know whether BATF prosecutions in other states were similarly flawed.

I almost never read "Tapped," was therefore unaware of its criticism of me for citing the Acree Study. On February 3, "Tapped" wrote:

Speaking of anti-gun-control academics with credibility problems, Dave Kopel still hasn't responded to our post exposing his make-believe numbers on supposed constitutional abuses by the Bureau of Alcohol, Tobacco and Firearms. What is Kopel trying to hide? Maybe Glenn Reynolds, who unfortunately didn't link to the post in question, could put in a call to his buddy Dave for us, eh?

So my citation of data straight out of a congressional report is labeled as "his make-believe numbers" along with assertions that I have "credibility problems" and that I must be "trying to hide" something. I didn't see this post either, until Richard Just ("Tapped" editor) e-mailed me on the afternoon of Feb. 3, inviting me to respond.

I promptly wrote back a detailed response to "Tapped." The next day, "Tapped" published a single paragraph of that response. "Tapped" in its original post had concluded:

Let's sum up: Kopel wants us to believe that the ATF today has a "pervasively flawed institutional culture" and can't be allowed the authority to adequately enforce gun laws because in 1979, a paid consultant to the NRA claimed before a congressional subcommittee that the ATF recommended too many non-felons for prosecution in a few cases in two whole states?

I responded to "Tapped" by quoting extensively from the Senate subcommittee's report, showing that BATF's problems were hardly limited to "a few cases in two whole states." Rather, the subcommittee detailed massive nationwide abuse by BATF. "Tapped" did not print any of my quotes from the subcommittee report, and even refused to print the URL pointing to the full text of the subcommittee report.

Addressing the "Tapped"" arguments that earlier abuses should not prevent BATF from being granted additional powers, I wrote:

As to whether BATF has reformed itself enough post-FOPA so much that it should get back the powers that were formerly abused, and receive new powers, my 1996 book No More Wacos: What's What with Federal Law Enforcement and How to Fix It, discusses a variety of post-1986 cases, including the Waco fiasco, and suggests that more reforms, rather than repeal of existing reforms, would be a good idea. The book had enough credibility with at the National Association of Treasury Agents (an independent, voluntary organization of some Treasury law enforcement employees) that the Spring 1997 issue of their magazine, The Agent, published some short excerpts. As the letters section from the summer 1997 issue explicates, NATA agrees with my argument in No More Wacos that the Waco tragedy was one example of the continuing, pervasive, and severe problems with BATF's management culture — rather then being primarily the fault of rank and file agents.

"Tapped" likewise didn't print this paragraph. The only thing they published was the first paragraph of my response.

Thus, "Tapped" shields its readers from discovering that an organization of BATF employees agrees with my claim that institutional problems continue at BATF; indeed the BATF employee organization agreed so much that reprinted parts of the book in its own magazine.

In the "Tapped" post printing my lone paragraph, "Tapped" wrote "Kopel was fibbing" and "Kopel is ducking the real question, which isn't whether the Senate subcommittee unfairly ganged up on the BATF, but whether or not the statistic on which his argument relies is credible or not."

The Senate subcommittee found the figure credible, and provided voluminous evidence showing that abusive prosecution was the norm at BATF. Congressional committees frequently cite studies commissioned by interest groups, and "Tapped" hasn't offered any fact-based criticism of the study itself (which involved far more than "a few cases" as "Tapped" inaccurately claims).

Nor apparently, did the BATF provide a convincing refutation of the study. As the Subcommittee wrote, and I quoted for "Tapped," (but "Tapped" refused to publish), the subcommittee found BATF's assertions that it not have a pervasive institutional problem to be "utterly unconvincing" and unsupported by any evidence other than the mere assertions of BATF administrators. To the contrary, BATF's own data substantiated the study's conclusion that prosecution of non-criminals was standard practice.

In keeping with the hyper-partisan and factually loose style there, "Tapped" wrote: "The GOP lost control of the Senate in the fall of 1986 — but not before passing the McClure-Volkmer bill the previous spring." To be precise, the Senate passed the Firearms Owners Protection Act in 1985, then acceded to House amendments in 1986. The claim made by "Tapped" and The Washington Monthly that FOPA was a Republican bill is nonsense, and wouldn't be made by anyone who bothered with a few minutes research.

FOPA passed the Senate 79-15, with 30 Democrats in favor and 13 opposed. Among the Democratic senators voting favor were Joe Biden, George Mitchell, John Glenn, and Al Gore. FOPA passed the House 292-130, with Democrats voting 131 in favor and 115 opposed. House Democrats who voted for FOPA included Tom Lantos, Tim Wirth, Lee Hamilton, Dan Glickman, Jim Florio, Mike Synar, Tom Daschle, Tom Foley, and Les Aspin. The lead House sponsor, Harold Volkmer, was a Democrat.

"Tapped" doesn't show much evidence of being interested in serious and constructive dialogue. It's poor manners to attack someone, complain that they are dishonest for not responding, solicit a response, and then excise almost all the substance from that response. I enjoy debating the gun issue with thoughtful scholars like Carl Bogus (Roger Williams College of Law) and well-intentioned activists like Michael Beard (Coalition to Stop Gun Violence). But I don't waste time in flame wars on Usenet groups, and for the same reason, I'm going to resume my old policy of ignoring "Tapped."