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What’s The Obama Administration Up To On Firearms?

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Article first appeared at Ammo Land.

U.S.A.-(Ammoland.com)- The Obama Administration’s record on firearms is curiously mixed. On the one hand, the President deserves an award – which he is unlikely to receive or want – as America’s greatest gun salesman. All of his musings about gun control have gone hand in hand with boom times for the firearms industry.

Imports have surged. In 2008, the U.S. imported 1.468 million handguns and 538,000 rifles. Last year, we imported 2.423 million handguns and 708,000 rifles – though remarkably, imports in 2015 were down from their peak 2013 levels. Much the same is true of manufacturing: up from 4.5 million firearms in 2008 to 10.8 million in 2013. Exports are still below the levels of the early 1990s, but even here, the story over the Obama years is one of growth: 228,000 firearms exported in 2008, 393,000 in 2013.

Finally, interest in items covered by the National Firearms Act – including automatic weapons, suppressors, and certain shotguns – has skyrocketed. Before 2006, fewer than 350,000 forms processed annually. In 2014, that number exceeded 1.37 million. This remarkable record undoubtedly has many causes, including concern about terrorism. But the one thing all of these numbers have in common is that the growth correlates well with President Obama’s rise, his re-election in 2012, and the approach of the 2016 election, which former Secretary of State Hillary Clinton appeared poised to win.

But then there is another side of the story. Over the past several years, the Obama Administration’s actions – or, in one case, non-action – regarding firearms exports have been, at best, vexatious. At worst, they are more than vexatious: they are commercially damaging, bad for our national security, and inconsistent with previous pledges and regulations.

Most recently, in November 2016, the State Department’s Directorate of Defense Trade Controls (DDTC) confirmed, in response to a request for a ruling from the FireArms Import/Export Roundtable (FAIR) Trade Group, that it would treat parts and components for firearms as though they are, for the purposes of congressional notification, actually firearms.

DDTC argues that, since the Arms Export Control Act (AECA) does not define “firearm,” it is free to define the term as it pleases. DDTC’s interpretation is in direct conflict with the regulations and their own published industry guidance. Coming after a July ruling by the DDTC on what constitutes firearms “manufacturing,” a ruling that met with vehement industry and Congressional protests, the November decision continues a pattern of regulatory overreach based on the AECA.

One problem with the Administration’s approach is that it is completely arbitrary. Christopher Stagg, an international trade and regulatory attorney who served as Senior Advisor with the DDTC from 2010-2013, commented to me that “Seven years ago, the Seventh Circuit unanimously admonished DDTC over its constitutionally dubious practices of carrying out and enforcing secret laws, which that court noted were akin to the behavior of a totalitarian regime. . . . It is certainly deeply troubling that the DDTC now tacitly acknowledges it secretly disavows publicly-noticed, unambiguous regulations.”

But there are other concerns. Apart from being unjust, DDTC’s ruling is particularly damaging for smaller firms because the AECA requires congressional notification of exports of firearms valued over $1 million. (The threshold for notification in all other cases is much higher: a minimum of $14 million for major defense equipment sales to governments, and $50 million for defense articles and services.) The concern isn’t about congressional notification per se: it’s entirely reasonable that Congress be notified about major exports. It’s whether the $1 million threshold, coupled with the amount of time required for congressional notification, is reasonable for parts and components of firearms.

This threshold, and the notification provisions, have real world consequences. U.S. firearms and ammunition manufacturers can find it hard to compete internationally because the notification delays make it impossible for them to meet delivery requirements. Foreign competitors realize this, and urge foreign purchasers to include provisions that U.S. manufacturers cannot meet. Furthermore, the low congressional notification bar makes it easier for lawmakers to express informal concerns that end up scuppering exports because DDTC is unwilling to proceed to the formal notification stage.

For example, a recent U.S. sale of rifles to the Philippine police was halted for exactly this reason. The net result: Philippine President Duterte indicated he was likely to turn to other suppliers. In his words, “Russia, they are inviting us. China also. China is open, anything you want, they sent me brochure saying we select there, we’ll give you.” It is certainly true that there are legitimate reasons for concerns about human rights in the Philippines. But it is also true that the U.S. will find it difficult to make its ‘Asia pivot’ work without the Philippines, and that alienating the Philippines to the extent they start buying from China weakens the U.S. strategic position, reduces U.S. exports, strengthens China’s export position and its influence, and saves no lives in the Philippines at all.

Then there is the Administration’s effort to use the International Traffic in Arms Regulations (ITAR) as the basis for a case against Defense Distributed, the makers of the ‘Liberator’ 3D printed firearm. This case rests on the DDTC’s assertion that the publication of the plans for this firearm on the internet makes it an export, which in turn allows them to apply ITAR, which in turn allows them to impose a pre-publication approval requirement – and thus, that Defense Distributed, having not secured that approval, is guilty of exporting firearms without approval.

Complicated stuff – but the gist of it is that the government is saying that you can’t put technical data on line (and thus into the public domain) without its approval, and that the government is the one that gets to decide what constitutes technical data. That sounds an awful lot like prior restraint, and thus, like a First Amendment case. Just as bad is the fact that, again, the government is changing the rules of the game. As Mr. Stagg comments, “Curiously, DDTC unequivocally represented to a federal court in 1996 that it does not regulate the publication of technical data. It even included statements it made to the plaintiff in that case that it was not concerned with publication of technical data to the internet. And since then, the ITAR has not been amended otherwise.”

Finally, there is Export Control Reform. This is an enormous – and well-intentioned – effort to review items that are subject to both the ITAR and the Export Administration Regulations (EAR) so as to more appropriately regulate these items. Export Control Reform isn’t about abandoning controls: it’s an effort to make U.S. export controls effective where they are needed. The devil, of course, is in the details, and U.S. export controls are incredibly detailed.

Still, as of late December 2016, the Administration has finished, or all but finished, its review of 18 of the 21 categories in the USML. This has resulted in a huge transfer of items from the controls of the ITAR to the controls of the EAR. But what are the three USML Categories on which no public progress has been made? Ammunition, artillery and firearms. It’s widely believed that public progress on these categories has been, to quote Jeffrey G. Grody of Orchid Advisors, “stalled due to the sensitivity of gun control issues in the current political environment.”

You can’t say that no one has noticed this. The National Shooting Sports Foundation (NSSF) has waged a long battle on this front and helped develop the Export Control Reform Act of 2016. This bill, H.R. 6176 in the House and S. 3405 in the Senate, would finish the job of export control reform for the three final categories. Rep. Mike Kelly (R-Penn.), a long-time stalwart on firearms issues, pressed the administration on this issue last December. This February, he received a State Department response that it is “committed to finalizing an initial review of the entire U.S. Munitions List in 2016.” It now has barely a week to fulfill that promise. There is at least widespread optimism that the incoming administration, with the support of Congress, will publish proposed rulemaking transferring most firearms and ammunition over to the EAR for export licensing purposes.

It’s important to note that none of this, with the exception of the Defense Distributed case, has anything at all to do with the availability of firearms in the U.S. – and even that case rests on the charge that Defense Distributed is exporting by publishing online. All of these issues are about exports – and no matter what the U.S. does by way of improving its export control system, firearms exporters still have to obey the laws, import rules, and permitting arrangements of the importing nation. Ending these vexatious measures, or completing Export Control Reform, would simply reduce costs for U.S. firearms manufacturers and make it easier for them to export. The alternative isn’t that foreign purchasers don’t buy firearms: the alternative is they don’t buy firearms from us.

U.S. Secretary of State John Kerry signs the Arms Trade Treaty as Under Secretary-General for Legal Affairs Miguel Serpa Soares looks on during the 68th session of the United Nations General Assembly at U.N. headquarters, Wednesday, Sept. 25, 2013. (AP Photo/Jason DeCrow)
U.S. Secretary of State John Kerry signs the Arms Trade Treaty as Under Secretary-General for Legal Affairs Miguel Serpa Soares looks on during the 68th session of the United Nations General Assembly at U.N. headquarters, Wednesday, Sept. 25, 2013. (AP Photo/Jason DeCrow)

So why has the Obama Administration done all of this? Perhaps it is simply bureaucracies doing what bureaucracies do: make rules. Perhaps it is administrative stubbornness in defending initial mistakes by digging in. Perhaps it is the impact of an increased sensitivity bred by the Arms Trade Treaty – and indeed, the most troubling thing about these steps is that, collectively, they show how regulatory decisions that are nominally about exports can have a substantial impact on the firearms industry inside the United States, a point that those concerned about the Treaty should bear in mind.

Or perhaps – and this is the most likely explanation – it is just unwillingness to be seen to be treating U.S. firearms manufacturers and exporters fairly in an administration that is rhetorically committed to gun control. Whatever the cause, the next administration can’t end it all soon enough.

Dr. Ted R. Bromund is Senior Research Fellow in Anglo-American Relations in the Margaret Thatcher for Freedom at The Heritage Foundation.

About Ted R. Bromund, Ph.D.:

Ted R. Bromund studies and writes on British foreign and security policies and Anglo-American relations as senior research fellow in The Margaret Thatcher Center for Freedom. He also explains why America must defend and advance its unique leadership role in the world. Visit: http://blog.heritage.org/author/tbromund/ to read more.

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