Executive Orders and the Firearms Industry - An Approaching Storm?

January, 2015

   Because our law firm specializes in advising members of the Firearms Industry (“Industry”), we have had countless conversations with Industry members and colleagues about the likelihood of new or revised gun control legislation.  We have consistently taken the position that new legislation, amendments to the Gun Control Act, or even amendments to ATF regulations are unlikely because they are not generally supported by Congress or voters.  

Rather, we have stated - and continue to believe - that “increased gun control” will take the form of new and more aggressive application and enforcement of existing laws and regulations. With the President’s statements that he intends to issue executive orders in response to mass shootings, this is exactly what is happening.


   An executive order is a directive issued to Federal agencies by the President without any congressional input or approval.  Federal agencies (like ATF) are part of the executive branch of the Federal government, and executive orders are essentially instructions from the head of the executive branch to his agencies.


   ATF is the primary regulator of Industry members.  ATF has internal policies and procedures that it follows in applying and enforcing Federal laws and regulations.  For example, in May of 2003, ATF issued a policy requiring all field divisions to follow one set of criteria for determining when to revoke or deny a license (ATF Brief 5370.1).  This policy is referred to as ATF’s Administrative or Adverse Action Policy.  In 2007 and again in 2009, ATF revised the Administrative Action Policy (ATF Order 5370.1A). Although anyone can access laws and regulations, for various reasons, ATF’s Administrative Action Policy has not been publicly disseminated.    

Over the years, our firm has seen how changes to the Administrative Action Policy affect Industry members.  One fairly recent example involves ATF’s positions regarding the long-term implications of a license revocation proceeding.  In early 2013, ATF implemented a new internal policy providing that it will deny a license to an applicant for a Federal Firearms License (“FFL”) who identifies in its application one or more "responsible persons" who (1) have been responsible persons on an FFL that has been revoked (even if the revocation was many years ago) or (2) is the subject of a pending revocation proceeding. This policy is a complete departure from ATF's former policy, which permitted “cooling off periods” and allowed applicants and responsible persons associated with past revocations to obtain new FFLs after the passage of time and after demonstrating improved compliance procedures.  

Our firm expects that the President’s impending executive orders will implement similar policies - policies that are complete departures from past ones that Industry members have relied upon for years.  We also expect that they will make it much harder to enter and remain in the Industry, by increasing FFL revocations and FFL application denials.

This is extremely important to Industry members – regardless of size - who have any history of ATF adverse action (including more than one inspection with violations, a warning letter, and a warning conference). With those Industry members, ATF may be much less willing to work with them to keep them in business.  Our firm has worked with hundreds of Industry members with a history of ATF adverse action, and there are some solutions they can implement to eliminate or reduce their exposure.