20 GOP Senators warn DOJ, ATF on "secret guidance"

AP Photo/Andrew Harnik

Utah Sen. Mike Lee and 19 other Senate Republicans have fired off a letter to Attorney General Merrick Garland and acting ATF Director Marvin Richardson expressing their “grave concern” over what they call an “an abject disregard for the fundamental principles of due process and accountable governance”; internal documents not available to the general public that the agency is using as secret guidance to threaten law-abiding gun owners who are attempting to lawfully build suppressors or who possess certain triggers.

We recently reported on the mass denials of gun owners who’ve applied with the ATF to build their own suppressors, only to be informed that the agency considers parts used to construct a silencer as suppressors themselves, which must be registered under the NFA. The letter from Lee and his Republican colleagues ties in that recent development with other agency actions that have targeted owners of forced reset triggers as well.

In the letters, the ATF claims–without offering any explanation as to why–that popular item known as “solvent traps” and “forced reset triggers” (FRT) are unregistered silencers and machine guns, respectively, and therefore subject to regulation under the National Firearms Act (NFA), 26, U.S.C. §§5801-5872.

One such letter threatens that “[p]ossession of any of the unregistered silencer devices could result in prosecution for criminal violation of Federal law” and instructs recipients to contact their local ATF field office within 30 days to “coordinate the abandonment of any silencers.” The transfer or possession of an unregistered silencer or machine gun carries with it a penalty of up to ten years in prison.

Similarly, an ATF email dated January 26, 2022 ordered ATF agents to search out and demand “voluntary” surrender of two models of forced reset triggers, or otherwise “[i]f the manufacturer/seller refuses to abandon the items, please take custody of the items, and seize them for forfeiture.” The ATF email referred to those law-abiding citizens in possession of such triggers as “defendants.” Despite the significant criminal consequences attached to the unlawful manufacture, sale and possession of NFA items, ATF has never issued any public guidance differentiating a silencer from a solvent trap, or informing the public that it considers certain forced reset triggers to be machine guns. Notwithstanding the glaring absence of any such public guidance, the classification of a solvent trap as a silencer is contrary to the plain language of 18 U.S.C. §921(a)(24).

The ATF’s actions go far beyond these warning letters, according to the senators’ communication with Garland and Richardson. Lee and his colleagues also say that secret internal guidance has recently come to their attention; documents that are designed “‘to assist ATF personnel tasked with differentiating so-called ‘solvent-traps’ from firearm silencers’ and to assist ‘with identifying certain machine gun conversion devices commonly referred to as’ FRTs.'”

These documents contain summaries of the standards that the Firearms and Ammunition Technology Division purportedly uses to classify items. Disturbingly, ATF made these documents available only to those tasked with enforcing the law, rather than those who strive to comply with it. Indeed, ATF marked these documents as “Law Enforcement Sensitive” to conceal them from the firearms industry and the American public.

We find the ATF’s attempt to conceal its interpretations of the law disturbing. In a free society, “Every citizen is presumed to know the law.” Thus, as the Supreme Court has said, “‘it needs no argument to show that all should have free access’ to [the law’s] contents,” including, in addition to the text of a statute, to those materials which constitute “the authentic exposition and interpretation of the law.

Our government, including the ATF, has a duty to inform Americans what they must do to comply with federal law, especially when the conduct involves the exercise of an enumerated constitutional right and violations could result in a penalty of up to ten years in prison. The use of “secret” law is anathema to our system of government. The United States Court of Appeals for the Seventh Circuit said, “[a] designation by an unnamed official, using unspecified criteria, that is put in a desk drawer, taken out only for use at a criminal trial, and immune from any evaluation by the judiciary, is the sort of tactic usually associated with totalitarian régimes.” Yet, that is exactly what the ATF has done in this and other cases

The GOP senators are now demanding that Garland and Richardson turn over all internal instructions, guidance, and directives regarding solvent traps and forced reset triggers, along with an explanation about why the public hasn’t been informed of these details, by March 25th. Whether or not the Biden administration will actually do so is anyone’s guess, but I’m glad to see that this issue is at least on the radar of the following senators:

Sen. Mike Lee (R-UT)

Sen. James E. Risch (R-ID)

Sen. Thom Tillis (R-NC)

Sen. Rick Scott (R-FL)

Sen. Cynthia M. Lummis (R-WY)

Sen. Mike Braun (R-IN)

Sen. Cindy Hyde-Smith (R-MS)

Sen. Marsha Blackburn (R-TN)

Sen. James Lankford (R-OK)

Sen. Kevin Cramer (R-ND)

Sen. John Boozman (R-AR)

Sen. Bill Hagerty (R-TN)

Sen. Lindsey O. Graham (R-SC)

Sen. John Hoeven (R-ND)

Sen. John Barrasso (R-WY)

Sen. Mike Crapo (R-ID)

Sen. Chuck Grassley (R-IA)

Sen. Ben Sasse (R-NE)

Sen. Tim Scott (R-SC)

Sen. Ted Cruz (R-FL)