At his recent testimony before the Senate Judiciary Committee about the controversial “Fast and Furious” operation, Attorney General Eric Holder said, “[w]e must
be careful not to lose sight of the critical problem that this flawed investigation has highlighted: we are losing the battle to stop the flow of illegal guns to Mexico.” The operation, which is claimed to have allowed over 2,000 guns to cross the border into Mexico from the United States for the purposes of being tracked by the Bureau of Alcohol, Tobacco and Firearms (ATF), has shed light on the increasing drug related violence taking place at the U.S./Mexico border. According to the ATF’s tracking system, eTrace, as of June 2011, those guns have been found at approximately 179 crime scenes in Mexico. On December 14, 2010, United States Border Patrol Agent Brian Terry was killed near Rio Rico, Arizona; on February 15, 2011, United States Immigration and Customs Enforcement Agent Jaime Zapata was killed in Northern Mexico. The guns used in both killings were traced back to the United States. The gun used in Agent Terry’s killing traced back to a gun shop that was cooperating with the ATF in the Fast and Furious operation. Violent drug related crimes on both sides of the border has been on the rise, but the Fast and Furious operation has brought it front and center on the national security stage.
One of the areas being focused on by lawmakers is the current state of gun laws in the United States. In addition to “gunwalking” operations like the Fast and Furious operation, guns have been crossing into Mexico from the United States by smugglers at an alarming rate; a significant number of these guns are then found at crime scenes on both sides of the border. Even though the ATF’s eTrace system was not created to amass statistics on how many guns that originate in the United States and are found in drug related crime scenes on both sides of the border, the ATF has used it to produce information for lawmakers. In a report to Senator Dianne Feinstein, the ATF Acting Director, Kenneth Melson, reported that 70% of guns recovered in Mexico and traced by the ATF had, at some point, passed through the United States. This information has promoted a call to renew and strengthen gun laws in the United States. Senators Feinstein, Schumer and Whitehouse issued a report in June 2011, which outlines legislative remedies to this growing national security threat.
The first remedy that was recommended was a renewal of the Federal Assault Weapons Ban (FAWB). The ban was part of the Violent Crime Control and Law Enforcement act of 1994 and, in accordance with the sunset provision in the act, expired on September 13, 2004. The FAWB defined the term “assault weapons” as semi-automatic rifles, pistols and shotguns that had features specifically listed in the language of the act. Possession, sale and manufacturing of such weapons were banned by the FAWB. Renewal of the FAWB would allow for better enforcement of state gun laws that were modeled after the FAWB and depend on its statutory framework for effective enforcement. One criticism of the FAWB was that it created guidelines for gun manufacturers to produce semi-automatic weapons without the cosmetic features banned by the act and maintain the functionality of the weapons themselves. An effective renewal of the FAWB would have to balance this outcome with constitutional rights, as well as consider how to remove those weapons that have been produced and/or imported since the expiration of the ban. Calls for renewal of the ban began with the shooting in Tucson, Arizona, where Congresswoman Gabrielle Giffords was shot with a semi-automatic weapon with a large ammunition capacity and have been bolstered by the statistics the ATF released about the involvement of these guns in violence on both sides of the U.S./Mexico border.
Another legislative recommendation made in the report was a strict enforcement of an import ban of military style weapons. Under the Gun Control Act of 1968, the President can enforce such a ban on “non-sporting” guns. According to the report, 19% of the 87% of guns traced from crimes in Mexico were imported into the United States, many from Eastern European countries, and then trafficked into Mexico. Such a ban could potentially curb gun trafficking into Mexico, since many of the guns preferred by the Mexican drug cartels are the military style high caliber weapons that are commonly found in the former Soviet countries.
Gun shows are the easiest place to obtain the semi-automatic weapons that tend to be trafficked across the border. According to ATF statistics, 30% of traced guns that are illegally trafficked are connected in some fashion to gun shows. Under current gun laws, vendors that are Federal Firearms Licensees are required to conduct background checks on purchasers through the National Instant Criminal Background Check System. Private sellers, however, are not required to conduct background checks in situations where firearms are bought and sold for personal collections or hobby because they are not required to hold federal firearms licenses for these types of transactions. Such private sellers are also not required to keep records of their sales. This exception for private sellers is what is known as the “gun show loophole.” In response to this glaring lack of regulation, the Gun Show Background Check Act of 2011 was introduced by Senator Frank Lautenberg, which would require background checks for all purchases made at gun shows by mandating that all sellers at gun shows must be Federal Firearms Licensees.
The Department of Justice has stated that it considers the rise of the Mexican drug cartels to be the single greatest organized crime threat to American national security. Whether the very public scrutiny of the Fast and Furious operation will bring about real change to current gun laws to deal with this very real threat remains to be seen.