Full Analysis of ATF Form 4473 2012

Analysis of the changes between ATF Form 4473 Revised April 2012

And ATF Form 4473 Revised August 2008

By KrisAnne Hall

Summary available here.             Printable version here.

   ATF has made several changes to their Form 4473, Firearms Transaction Record Part I- Over-the Counter.  ATF has cited a memorandum of the Attorney General as the source and requirement for these changes.  ATF asserts that these changes are necessary to comply with the purpose in the memorandum to prevent STATES from creating more stringent requirements on aliens than those of citizens.  The AG memorandum does not make this assertion, nor does the memorandum support such reasoning.   Finally, the AG, in issuing their memorandum, has made it easier for transient immigrants, who are not loyal to the laws of this land, to buy, transport, and ship guns and ammunition than for US Citizens.  The ATF, in enforcing the AG’s standards, has claimed that the states have no right to do anything about it.

It is also relevant to point out that the recent Supreme Court ruling in Arizona would support both the AG’s memorandum in granting greater access to nonimmigrant aliens as well as the ATF’s assertion that the states have no say in the matter.  (For further understanding of the Arizona ruling please read here)

A.                   The Specific Changes made to ATF Form 4473 from 2008-2012

1.      There are three specific changes made to ATF Form 4473.  First, section 10 requires the applicant to verify “Race (Ethnicity).”

The 2008 version gives the following choices:

atf 10

The new 2012 version breaks section 10 into sections 10-a and 10-b and gives the following options:

atf 10a

NOTE:  It is interesting to note that there is no box for “Arab or Middle Eastern” and no box for “Other.”  The choices are so specific, how would someone answer that question if they were from Iraq or Israel or Pakistan?  This author could not find in the AG memorandum any requirement or even justification for this particular change; it is nonetheless a significant change in the forms.

2.  The next significant change in the form involves sections 11-l and 12.

The 2008 version states:

atf 11

The 2012 version states:

atf 20cd

NOTE: The 2008 inquiry covered ALL aliens; the new version does not.

3.      The final significant change in versions is the elimination of the language in section 20-c and the alteration of language in section 20-d of the 2008 version:

atf 20cd

NOTE: The 2012 version of this form does not require any immigrant aliens to provide this documentation and focuses only on those with a nonimmigrant visa and section 20-d is now section 20-c with the following changes:

atf 20cd

B.                  The Analysis

ATF has made several changes to its practices in allowing nonimmigrant aliens to purchase firearms.  ATF asserts the justification for these changes are pursuant to a Memorandum issued on October 28, 2011 and signed by Assistant Attorney General Virginia Seitz.

ATF declares the basis for all the changes are due to the AG office reinterpretation of Congress’ intent in defining  the terms “nonimmigrant alien” in 18 U.S.C. § 922(g)(5)(B) (2006) and its application to the ability of an alien to ship, transport, possess, or receive a firearm or ammunition :

A provision of the federal Gun Control Act prohibits any “alien” who has “been admitted to the United States under a nonimmigrant visa” from shipping, transporting, possessing, or receiving “any firearm or ammunition” that has a connection to interstate commerce. 18 U.S.C. § 922(g)(5)(B) (2006).

AAG Seitz’s memorandum concludes that the ATF had been inappropriately expanding the definition ‘nonimmigrant alien’ to include all nonimmigrant aliens, when the Attorney General’s office felt these restrictions should apply to those nonimmigrant aliens who were required to get a “paper” visa and did not possess waivers.

The AG office claims congress did not intend for the prohibitions in the Gun Control Act of 1968 “to apply to all aliens with nonimmigrant status, including nonimmigrant aliens admitted to the United States without a visa, pursuant either to the Visa Waiver Program, see 8 U.S.C. § 1187 (2006), or to regulations otherwise exempting them from visa requirements.”

In 2002, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) issued an interim final rule interpreting this prohibition to apply to any alien who has the status of “nonimmigrant alien,” regardless of whether the alien required a visa in order to be admitted to the United States.  We explained that the text is clear: the provision applies only to nonimmigrant aliens who must have visas to be admitted, not to all aliens with nonimmigrant status. (emphasis added)

Section 922(g)(5)(B) makes it unlawful for aliens who have been “admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))” to ship, transport, possess, or receive any firearms or ammunition.  A nonimmigrant is a person who is not seeking citizenship and does not intend to remain permanently in the United States.  The AG’s office claims that people in the United States with student visas and employment visas should be treated differently than those who are simply visitors from countries authorized to enter the US without visas for vacation purposes, as well as aliens admitted under the Visa Waiver program.  All those who are in this country as visitors or under the Visa Waiver program are only allowed to be here for 90 days or less.

The AG asserts that “although the text of the statute does not include an express rationale for the distinction drawn between nonimmigrants with visas and those without” they believe Congress never intended for these temporary visitors to be restricted by the Gun Control Act.  Although the AG memorandum of October 28 does not list any specific changes that need to be made, the memorandum does make it clear that all “pending investigations and prosecutions predicated on the view that the statute applies to all nonimmigrant aliens, regardless of visa status” must be immediately terminated.  The changes to the ATF Form 4473 are made pursuant to subsequent open letters issued by the Department of Justice “To ALL FEDERAL FIREARMS LICENSEES.”

The first Open Letter is dated December 8, 2011 and is signed by Chief, Firearms and Explosives Industry Division head, Chad Yoder.  This open letter does not directly reference the above memorandum, but does mention it by way of “Office Of Legal Counsel” opinion.

“Recently, the Office of Legal Counsel, U.S. Department of Justice, (OLC) has informed ATF that its interpretation of the scope of persons prohibited by section 922(g)(5)(B) is overly broad.”

This letter reiterates the AG opinion that the Gun Control Act of 1968 does not apply to all nonimmigrant aliens.

“Those aliens, and others who are lawfully in the country without a visa, are not within the scope of the GCA prohibition.”

No changes to the form are issued at this time, but Mr. Yoder explains that these changes are pending, putting all licensees on notice that the changes in interpretation are forthcoming.

The next Open Letter is dated April 30, 2012 and is signed by Chief, Firearms and Explosives Industry Division head, Chad Yoder (Attached as “C”).  Again this letter references the October 28 AG memorandum as well as the December 8, 2011 open letter as the purpose for the letter.  The April 30 letter, however, implements changes in ATF Form 4473, claiming the changes in policy pursuant to the AGs interpretation of the Gun Control Act.  This letter asserts that the opinions issued in the AG memorandum claims that “states” applying “more stringent residency standards” was a violation of the AG’s interpretation of the Gun Control Act.

“Second, DOJ concluded that, as a matter of law, applying a more stringent state residency requirement for aliens legally present in the U.S. than for U.S. citizens is incompatible with the language of the Gun Control Act (GCA).”

There is no such direct statement in the October 28 AG memorandum.  This memorandum dealt entirely with the ATF’s interpretation of this act and made no comments regarding state requirements.  Yoder further claims,

“Therefore, an alien legally in the United States is not required to provide 90-days proof of continuous residency in the State prior to the transfer of the firearm.”

No further explanation is given.  Perhaps, because nonimmigrants here upon waivers alone are only permitted to be in this country for less than 90 days at a time, requiring proof of residency to predicate access to firearms and ammunition is seen as a prohibition on this particular class of immigrants.  But this requirement was removed for ALL IMMIGRANTS and not simply for those who are here pursuant to waiver.  Gun and ammunition dealers and law enforcement agents are no longer allowed to request proof of residency from ANY nonimmigrant for authorization of shipping, transporting, possessing, or receiving “any firearm or ammunition”.   The justification for this change, as stated by Mr. Yoder, is to prevent STATES from applying more stringent residency requirements on aliens than citizens.   The AG memorandum specifically stated that the ATF could not apply more stringent requirements upon one class of immigrants over another.  This memorandum never stated that more stringent requirements could not be made of ALL nonimmigrants.

Additionally, Mr. Yoder does not even mention the changes in section 10-a of the 2012 ATF Form 4473 in the April 30 Open Letter.  As a reminder, this section adds a separate question regarding ethnicity, to distinguish Hispanic or Latinos from all other races.  This is in addition to section 10-b that requires the person to identify race, giving 5 choices.  What is the justification for this change?  How does a separate distinction between Hispanics and non-Hispanics meet the intent of the Gun Control Act as claimed by the AG?  What is the purpose of making this distinction?

C. Conclusion

In Conclusion, on April 30, 2012 ATF made changes to ATF Form 4473, Firearms Records Part I- Over-the-Counter. ATF asserts these changes are justified by a memorandum issued by the Attorney General on October 28, 2011.   Chief, Firearms and Explosives Industry Division head, Chad Yoder, claims the reason these changes are necessary is because states who are applying more stringent state residency requirements for aliens legally present in the US to purchase, ship, transport, possess, or receive a firearm or ammunition is incompatible with the Gun Control Act of 1968.  The October 28 memorandum does not mention anything about “state requirements” and only addresses ATF’s interpretation of the Gun Control Act relative to separate classes of aliens.

The distinction made by the AG allows a specific class of aliens to purchase guns and ammunition.   Aliens without nonimmigrant visas do not intend to obtain citizenship, express no intent to stay in this country for more than 90 days, make no application for visa, and therefore have had no formal background checks.  Therefore, the AG has made it easier for transient immigrants, who are not loyal to the laws of this land, to buy guns and ammunition than for US Citizens.  The ATF, in enforcing the AG’s standards claims that the states have no right to do anything about this; the states cannot make more stringent requirements upon aliens than on citizens.  However, there seems to be no problem making more stringent requirements upon citizens than on transient aliens.

Although there are several legal arguments that could be asserted against the Attorney General’s memorandum asserting their understanding of Congress’s intent in drafting the Gun Control Act of 1968, the purpose of this analysis is to discuss the changes made to the ATF Form 4473 and the reasons asserted for these changes.  (NOTE: Will the AG’s understandings ever be challenged?  It is unlikely when the correction is issued by the Department of Justice against the Department of Justice, the agency governing itself.)  Since the AG has made it a point to tell us what they believe Congress’s intent with immigrant aliens and the Gun Control Act, it would seem that it is inherent upon Congress to clarify these issues.