Texas: NRA Opposes Bills Requiring Reporting of Lawful Firearm Sales to Law Enforcement (HB 22, HB 106, HB 284, HB 324, & HB 1995)

Federal Requirement/Background

In 2011, the Obama administration approved a requirement that Federal Firearms Licensees (FFLs or gun dealers) in the Southwest border states report the multiple sale of certain semi-automatic rifles to a single buyer within a five-business day period to the Bureau of Alcohol, Tobacco, Firearms and Explosives. Specifically, the requirement covers sales of semi-automatic centerfire rifles of caliber .223 and larger that are capable of accepting a detachable magazine.

NRA opposed the creation of this rifle multiple sales reporting scheme on two separate grounds.

1. ATF is not legally authorized to collect this information

Federal law (18 U.S.C. 923(g)) requires FFLs to report the multiple sale of two or more handguns to a single buyer within five business days to the ATF and local law enforcement. The law conspicuously does not include rifles or shotguns in this requirement.

To enact their illegal rifle multiple sale reporting scheme, the Obama administration relied on so-called “demand letters.”

Federal law allows the Attorney General to issue a letter to an FFL that requires them to provide the government with firearm disposition records that the FFL is required to keep. These record requests were intended to be used in the course of specific law enforcement investigations.

As a workaround to the fact that federal law clearly does not authorize the collection of rifle multiple sales reports, ATF issued “demand letters” to the approximately 8,500 FFLs in the Southwest border states demanding that they report the multiple sale of certain rifles to a single buyer within five business days to the agency. Such a blanket request is outside the intended scope of the statute and clearly meant to circumvent the statutory limitations of the authorized multiple handgun sales reporting scheme.

2. Multiple sales reporting is a form of firearm registration

Multiple sales reporting results in the centralization of firearms transaction records for those implicated. It is a form of firearm registration. Firearm owners reject firearm registration as it facilitates firearm confiscation.

The key compromise of the Gun Control Act of 1968 was that firearm transaction records (form 4473s) would be held by individual FFLs, rather than deposited into a central repository. Sen. James McClure (R-Idaho) stated in 1985,

The central compromise of the Gun Control Act of 1968—the sine qua non for the entry of the Federal Government into any form of firearms regulation was this: Records concerning gun ownership would be maintained by dealers, not by the Federal Government and not by State and local governments.

The Firearm Owners’ Protection Act of 1986 further enshrined this protection into law. 18 U.S.C. 926(a) provides,

No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established. Nothing in this section expands or restricts the Secretary’s authority to inquire into the disposition of any firearm in the course of a criminal investigation.

As noted, the original language of the Gun Control Act provides an exemption to these protections in the case of multiple sales reports for handgun sales to a single individual within a five-business day period. The Obama administration’s abuse of the demand letter procedure to extend multiple sales reporting, and therefore centralization of these records, to the sale of certain rifles undermines the federal protections against the creation of a firearms registry and in effect creates a registry of firearm transactions that meet the government’s illegitimate criteria.

Texas Legislation

HB 22
Requires retailers to report the details of a sale of more than one firearm or more than three detachable firearm magazines to a single buyer within a five-day period to the Texas Department of Public Safety, who is then tasked with forwarding the information to local law enforcement where the buyer resides.  Imposes a Class B misdemeanor penalty on FFLs who fail to comply.

HB 106
Requires an FFL to report the details of a sale of more than one of any rifle that is greater than .22 caliber, accepts a detachable magazine, or is semi-automatic to a single buyer within a five-business day period to the Texas Department of Public Safety and local law enforcement where the FFL operates.  Imposes a Class A misdemeanor penalty on FFLs who fail to comply.

HB 284
Requires an FFL to report the details of a sale of more than one semi-automatic rifle greater than .22 caliber capable of accepting a detachable magazine to a single buyer within a five-business day period to local law enforcement where the transaction occurred. 

HB 324
Requires an FFL to report the details of the transfer of a semi-automatic rifle greater than .22 caliber capable of accepting a detachable magazine to an adult 18-20-year-old to local law enforcement. 

HB 1995
Requires an FFL to report the details of a sale of more than one semi-automatic rifle greater than .22 caliber capable of accepting a detachable magazine to a single buyer within a five-business day period to state and local law enforcement where the transaction occurred.  Imposes a Class B misdemeanor penalty on FFLs who fail to comply.

Multiple sales reporting is a form of firearm registration

The Texas legislation requires retailers or FFLs to compile and provide firearm transaction data to state or local law enforcement. None of the legislation provides limitations on what the government may do with this data, adequate protections to ensure this data isn’t publicly accessible, penalties for the misuse of this data, or for the destruction of this data in a timely manner.

Centralization of any firearm transaction data has privacy implications regardless of the government’s intent. In June 2022, the California Department of Justice inadvertently exposed private CCW permit holder data on a publicly available website.

Firearm registration facilitates firearm confiscation. Prominent national and Texas politicians have called for the confiscation of the types of firearms targeted under these bills.

Kamala Harris: “We have to have a buyback program, and I support a mandatory gun buyback program”
(Gun Safety Forum: Live updates from Las Vegas” NBCNEWS.com, October 3, 2019)

Beto O’Rourke: “Hell yes, we’re going to take your AR-15!”
(Democratic Presidential Debate, September 12, 2019) 

Rifles are rarely used in crime

Measures targeting rifles are ineffective because rifles of any description are rarely used to commit violent crime. Given this reality, researchers have been unable to show that banning the types of semi-automatic firearms targeted in most of the Texas legislation reduces crime.

In 2021, the FBI reported that there were more than twice as many individuals listed as killed with “knives or cutting instruments,” than with rifles of any kind. The data also shows that rifles were listed as being used in less homicides than “personal weapons (hands, fists, feet, etc.).”

In 1994, a 10-year federal ban on commonly-owned semi-automatic firearms and their magazines was enacted as part of the Clinton Crime Bill. Faced with the reality that so-called “assault weapons,” are rarely used to commit violent crime, a 1997 Department of Justice-funded study of the Clinton ban determined that “At best, the assault weapons ban can have only a limited effect on total gun murders, because the banned weapons and magazines were never involved in more than a modest fraction of all gun murders.”

A 2004 follow-up Department of Justice-funded study came to a similar conclusion. The study determined that “AWs [assault weapons] and LCMs [large capacity magazines] were used in only a minority of gun crimes prior to the 1994 federal ban,” “relatively few attacks involve more than 10 shots fired,” and “the ban’s effects on gun violence are likely to be small at best and perhaps too small for reliable measurement.”  Presented with the overwhelming evidence of the ban’s inefficacy, Congress did not renew it.

In 2018, the RAND Corporation released a continually-updated study that surveyed the available research on the effects of “assault weapons” and “large” capacity magazine bans. The study found no conclusive evidence that such bans have an effect on violent crime.

If a ban on such firearms does not improve public safety, how could multiple sales reporting of such firearms do so?

Criminals will not be impacted by multiple sales reporting

According to the Department of Justice (DOJ), 75 percent of criminals in state and federal state prison who had possessed a firearm during their offense acquired the firearm through theft, “Off the street/underground market,” or “from a family member or friend, or as a gift.” Only 10 percent of criminals acquired their firearm at a retail source.

Further, criminals could easily circumvent multiple sales reporting by using multiple FFLs or retailers.

Law enforcement is already notified of certain firearm transactions

Under the NICS Denial Notification Act of 2022, FFLs must now provide federal authorities the addresses of gun buyers who are denied or delayed by the National Instant Criminal Background Check System (NICS). The Act requires the U.S. Attorney General to report background check denials to state authorities and the FBI NICS Section to report all denied transactions electronically to local law enforcement within 24 hours. The denial notifications include the time and date of the denial, the reason for the denial, the location of the FFL, and the identity and address of the person.

The Bipartisan Safer Communities Act of 2022 requires the FBI, in the course of conducting a NICS check on individuals 18-20 years old, to contact “local law enforcement agency of the jurisdiction in which the person resides.”

Harms Texas business

In the case of rifles and magazines, multiple reporting legislation will incentivize gun buyers to avoid Texas FFLs and retailers to make purchases out-of-state. Federal law permits nonresident rifle purchases at FFLs. The sale of magazines is not regulated under federal law.

Therefore, under this legislation, Texas FFLs and retailers would be at a competitive disadvantage as compared to their counterparts in other states for the business of privacy-minded customers.