The firehose of Joe Biden’s anti-gun executive actions continued last week, as the Bureau of Industry and Security (BIS) at the U.S. Commerce Department issued an “interim final rule” clamping down on lawful exports of “non-military” firearms. The move was supposedly aimed at enhancing international peace and stability and preventing human rights abuses. Yet at the same time, the U.S. State Department was proposing to ease its own regulations on the export of military-grade arms to countries the U.S. considers close allies. One obvious takeaway from this conflicting state of affairs is that Biden’s control of firearms exports is rife with political gamesmanship and hypocrisy.
The legal regime for exporting firearms from the U.S. involves two major entities. The U.S. Department of State controls exports of guns that are “inherently for military end use.” The U.S. Commerce Department controls exports of guns that do not fit this category, the sorts of firearms that are lawfully kept by hundreds of millions of Americans in their own homes.
As we explained in a prior article, it was Obama/Biden administration that originally began the project of liberalizing export controls over so-called “dual use items,” i.e., those with both military and civilian applications. Exports of items that “provide the United States with a critical military or intelligence advantage, or, in the case of weapons, are inherently for military end use” were left to the State Department and subject to the strictest controls. Exports of other dual use items were transferred to the Commerce Department, whose export decisions are supposed to more holistically promote American goods against foreign competitors, while insuring sufficient safeguards to protect U.S. exports from diversion or misuse.
Unfortunately, anti-gun politics tainted this effort from the start. The professional bureaucrats drafting the rules for these categorizations came up with the firearms rule first, as revolvers, bolt action rifles, and semi-automatic firearms are the paradigmatic dual use items. But the Obama/Biden administration didn’t want to be seen as liberalizing rules relating to gun sales. So they left the gun rule to languish, even as they liberalized exports of more sophisticated technology, including spacecraft and satellites, explosives and propellants, and toxicological agents. It was the Trump administration that finalized the firearms export rules, to much orchestrated fury and hysteria by the anti-gun movement.
Now, four years into the Biden administration, the firearm prohibition lobby has finally focused the White House’s attention on using its executive authority to undo the export liberalization effort that actually began with Obama/Biden.
A new “interim final rule” published by BIS last week makes sweeping changes to the rules governing exports of non-military firearms from the U.S. BIS claims, “These changes will better protect U.S. national security and foreign policy interests, which include countering the diversion and misuse of firearms and related items and advancing human rights.”
The rule comes after BIS instituted a “pause” on commercial firearms exports to a host of destinations last October. During this “pause,” BIS claimed to gather information that indicated lawfully exported firearms of U.S. origin were being illegally diverted overseas and used to promote crime, human rights abuses, and terrorism. It did not, however, specifically tie this diversion to the transfer of export control from the State Department to BIS. Indeed, the preamble to the rule admits that this diversion also included firearms exported under the old State Department regime. Unsurprisingly, however, BIS’ “review” of the “evidence” determined that it needed to give U.S. firearm prohibitionists another win from the Biden administration, in the form of an administrative clamp-down on exports of non-military firearms to non-governmental end users.
What is particularly interesting about the changes BIS is proposing is how closely they mirror “reforms” gun control activists are seeking to impose in the U.S. The federal government has a relatively freer hand in regulating firearm exports than in regulating commercial sales of firearms to U.S. citizens. This is because constitutional protections are relatively weaker, and executive authority is relatively greater, in the “foreign affairs” context. Thus, the administration’s actions can be seen as a window into the sorts of restrictions it would like to impose domestically, if it believed it could get away with it.
For example, the new rule would create stricter new control categories for semi-automatic firearms, the same sorts of firearms the Biden administration has (so far) unsuccessfully sought to ban as “assault weapons” in the U.S. It would also establish dozens of “high risk” countries that would be subject to a “presumption of denial” for export licenses pertaining to non-governmental end users. This is similar to the ever-expanding list of “sensitive places” that gun control activists are seeking to establish as areas in the U.S. where the Second Amendment does not apply. Moreover, the former “presumption of approval” for licenses to most countries would be rescinded, in favor of a more skeptical case-by-case approach. This echoes the discretionary licensing regime for firearms acquisition and carry that gun control advocates favor here in the U.S. The period of export license validity, formerly four years, would be reduced to one year. Notably, in response to U.S. Supreme Court cases that have limited the discretion officials have to issue firearms licenses in the U.S., anti-gun states have responded by shortening the duration of issued licenses. In general, the rule’s restrictions are also aimed at reducing exports to private end users. Exports to foreign governments are not as adversely affected. This is reminiscent of the mindset of American gun control activists who seek mainly to control private access to guns, while strengthening the advantages that governments have over their citizens.
Indeed, even as the Biden administration was clamping down on the exports of non-military guns to civilians under BIS, it was moving to liberalize the export of machine guns and heavier weapons under the State Department to certain close allies. The NRA takes no position as to whether this liberalization is a good idea or not. We raise the issue merely to underscore the irony and apparent double standards in the administration’s approach to exports that have the potential for diversion and misuse. As we have seen right here in the U.S., governments are not immune from losing track of their own munitions, sometimes with lethal consequences.
The new BIS rule takes effect on May 30, 2024, but BIS will be accepting comments on the proposal until July 1, 2024. The easiest way to comment is through the online Regulations.gov portal. Whether or not the administration is likely to revise its rules in response to public input, well-written comments are important for advocacy efforts and for educating Congress and the public in the real-world consequences of the administration’s politically-motivated attacks on the U.S. firearms industry.
One likely outcome of the new rule is simply to divert arms sales currently emanating from the U.S. to other countries. This will only hurt the U.S. economy and manufacturing base, while disempowering the U.S. government in overseeing and structuring these exports. America’s biggest competitors in international arms sales include Russia and China. Even by anti-gun standards, allowing unscrupulous foreign adversaries to have a bigger footprint in the international market for guns seems like a heavy price to pay for inflicting even more pain on the U.S. firearms industry.
But like all of Biden’s gun control schemes, politics, not policy, seems to be the point in the administration’s latest clampdown on firearms.
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