The Obama administration quietly has been forcing new gun buyers to declare their race and ethnicity, a policy change that critics say provides little law enforcement value while creating the risk of privacy intrusions and racial profiling.
With little fanfare, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in 2012 amended its Form 4473 — the transactional record the government requires gun purchasers and sellers to fill out when buying a firearm — to identify buyers as either Hispanic, Latino or not. Then a buyer must check his or her race: Indian, Asian, black, Pacific Islander or white.
The amendment is causing a headache for gun retailers, as each box needs to be checked off or else it’s an ATF violation — severe enough for the government to shut a business down. Many times people skip over the Hispanic/Latino box and only check their race, or vice versa — both of which are federal errors that can be held against the dealer.
Requiring the race and ethnic information of gun buyers is not required by federal law and provides little law enforcement value, legal experts say. And gun industry officials worry about how the information is being used and whether it constitutes an unnecessary intrusion on privacy.
“This issue concerns me deeply because, first, it’s offensive, and, secondly, there’s no need for it,” said Evan Nappen, a private practice firearms lawyer in New Jersey. “If there’s no need for an amendment, then there’s usually a political reason for the change. What this indicates is it was done for political reasons, not law enforcement reasons.”
ATF said the change came about because it needed to update its forms to comply with an Office of Management and Budget (OMB) reporting standard put into effect during the Clinton administration. The ATF declined to comment on why race and ethnicity information are needed in the first place or what they are used for. On its prior 4473 forms, the bureau had been collecting race data.
“OMB’s race and ethnicity standards require agencies to ask both race and ethnicity in a specific manner (as done on [Form 4473]), and agencies may not ask for one without asking for the other,” wrote Elizabeth Gosselin, a spokeswoman for the ATF, in an emailed response to The Washington Times. She did not say why the agency suddenly made the change in response to a rule that was more than a decade old.
For ATF to ask for a purchaser’s race and ethnicity is not specifically authorized under federal statute, and since a government-issued photo ID — like a driver’s license — and a background check are already required by law to purchase a gun, the ethnicity/race boxes aren’t there for identification reasons, Mr. Nappen said.
“There is nothing [in ATF or OMB’s website links addressing the change in policy] that supports the requirement that ATF collect race-based information. The OMB guidance merely describes what categories of race should look like if information is collected,” Laura Murphy, the American Civil Liberties Union director for legislative affairs in Washington, said in an emailed statement.
In addition, Mrs. Murphy notes, the OMB guidance was supposed to be implemented by 2003; there’s no information given why ATF decided to make this change almost a decade later, she said.
“If there is a civil rights enforcement reason for the ATF to collect this data, I have not heard that explanation from ATF or any other federal agency,” said Mrs. Murphy.
Both the NAACP and the National Council of La Raza — the nation’s largest national Hispanic civil rights group — declined comment.
Access to the form
The 4473 form is supposed to be kept in a gun retailer’s possession at all times — allowing ATF agents to inspect the form only during the course of a criminal investigation or during a random audit of the dealer. The form is to be kept out of the hands of the government, hence the distinction between “sales/transaction form” and “registration form.” But that isn’t always the case, gun rights advocates say.
“We’ve been contacted by several dealers saying ATF is or has been making wholesale copies of their 4473 forms, and it’s just not legal,” said Erich Pratt, spokesman for Gun Owners of America, a gun advocacy group. “If this is what they’re doing somewhat out in the open, what’s going on behind closed doors? Are these names and demographic information getting phoned [in and] punched into a government computer? Do they ever come out?”
During the time ATF revised its 4473 form to include Hispanic or Latino as an ethnicity, the Obama administration was building gun control cases by saying U.S. firearms dealers were supplying Mexican gangs with weapons and that violence related to the sales was seeping across the border.
In March 2009, then-Secretary of State Hillary Clinton visited Mexico City and gave a speech against American gun stores and owners — blaming them for the drug cartels’ violence. Mrs. Clinton subsequently told CBS News that “90 percent” of the “guns that are used by the drug cartels against the police and military” actually “come from America.”
About a week later, Attorney General Eric H. Holder Jr. made the same points at a gun trafficking conference outside of Mexico City. In April, the president himself flew down to Mexico to inform President Felipe Calderon that Mr. Holder was going to review U.S. law enforcement operations, according to a 2011 report by the American Thinker.
This political worldview may have fueled decision-making at ATF, Mr. Nappen suggests. Around the same time that ATF started specifying “Latino/Hispanic” on their U.S. purchasing forms, they also required border firearms dealers in Texas, Arizona, California and New Mexico to start reporting multiple rifle sales.
In 2012, when ATF made the Form 4473 modification, they insisted their new reporting requirement for multiple rifle sales in those border states had led to “follow-up investigations involving transactions that might indicate firearms trafficking activities.”
“Was it coincidental [that] about the time the form changed the requirements came in that border states had to report multiple rifle sales, and there was a push in the antigun movement to claim American guns were arming Mexican cartels south of the border?” asked Mr. Nappen.
Although gun advocates speculate on the reasoning behind changing the form, on one thing they are clear: Requiring ethnicity and race to purchase a gun is a clear government overstep, violating Second Amendment rights.
“It’s an overreach, not authorized by Congress, taken upon [by ATF] unilaterally,” said Mr. Pratt. “The president has said his biggest frustration has been not getting gun control enacted — but we can see he’s been very active with his phone and his pen. And this certainly — either intentionally or unintentionally — feeds that notion.”