Legal Guide

Gun trafficking is totally legal, or is it?

The phrase gun trafficking gets thrown around as if everyone is in consensus about what that really is and how to tackle it legally. But, the truth is, that although people have a notion of the meaning of “gun trafficking”, there are currently no real laws against it. Caroline Maloney, a Democrat from New York, first learned about the limitation of gun trafficking laws during the Fast and Furious hearing.

The House Committee on Oversight and Government Reform went into recess in June without making a decision because they had to further investigate the Fast and Furious scandal and make a determination about the legalities involved. The gunrunning scandal, known as Fast and Furious, involved agents from the ATF, not only allowing, but actually supply weapons to certain drug cartels in Mexico.

Although seemingly a target by the Republicans to paint Obama’s administration in a scandalous light, the investigation brought about some serious questions about the actions of the agents involved and the statutes in place. Rombro Legal and Forcelli, the ATF supervisor for the Phoenix office, told the House Committee that chasing after gunrunners was not only fruitless, it was a waste of time and resources. He testified that, because of the laws in place, going after gunrunners is not effective because there are no laws that make it likely to convict those that they catch wrongdoing.

So, really at trial is not the agent’s actions, but the authority and power that they have legally to do anything even if they can apprehend gunrunners. What Forcelli testified to in open hearings was that trying to catch gunrunners was not an effective way of getting the bad guys. Since there are no clear laws in place to make it a federal crime, it isn't worth the effort. When it comes right down to it, there are no laws that state, “you can’t buy a gun and give it to someone who couldn’t get it themselves”. Or is there one that says you can’t sell guns to drug traffickers or cartels.

The ATF official stated that there are over fifty thousand firearms that make it over the border every year. The only real law that law enforcement officials have, to prosecute gunrunners is “straw purchasing”. Straw purchasing is when an individual buys a gun for an individual who can’t obtain one due to their background or gun laws in place disqualifying them. Even when caught, the offenders are rarely prosecuted because the paperwork involved is extensive, and the cases rarely, if ever, end in jail time for those who are caught purchasing. Whether it is just one gun or an entire gun ring, it is a very difficult thing to pursue legally.

The “straw purchasing law” is not only a very vague and difficult one to try, but it also comes with very low punishment if any, at all. That makes prosecuting someone under it not worth the time of law enforcement. Likely, those accused receive less than one-year probation and community service, which is not going to do anything to curb the amount of illegal guns that are pouring across the border. Jail time is assigned only to those who are caught with other offenses such as drugs or financial crimes, which carry high penalties and jail time.

It isn’t just law enforcement officials who understand that gunrunning is fair game and that it comes without any stiff penalties, gunrunners know it too. That is why they continue to traffic guns across the border for profit. With their hands tied, agents most definitely crossed legal boundaries, but perhaps had to, because they had no other tools or recourse.

Realizing, that for agents to actually target gunrunners they need to have the tools necessary to prosecute them, Maloney, designed the Gun Trafficking Prevention Act, in February of 2013. It would make the punishment harsher if someone was caught straw purchasing guns to as many as twenty years in prison and would finally make it a federal crime. Unfortunately, the bill has not passed, and agents still have their hands tied.

The proposed Gun Trafficking Prevention Act is an attempt to initiate stricter laws to allow law enforcement to make a difference in gun trafficking in the US. It is a fact that guns don’t kill people, people kill people. But, allowing guns to be trafficked to criminals, puts those firearms into the hands of those, who intend to use them for malicious intent. The Second Amendment was not created so that drug traffickers and cartels could flood US streets, but to allow Americans to protect themselves. If gunrunners are to be stopped, law enforcement needs tools to catch them and get them off of the streets for good.

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