BATFE and foreign governments: More extensive than previously thought

"...Firearms tracing, using eTrace technology, allows law enforcement agencies to identify

trafficking trends of DTO's and other criminal organizations funneling guns into Mexico

from the United States. In addition, eTrace assists criminal investigators to develop

investigative leads in order to put firearms traffickers and straw purchasers (people

who knowingly purchase guns for prohibited persons) behind bars before they cross

Hermosillo and Guadalajara, with six additional deliveries scheduled by March 2008

to the remaining U.S. consulates in Mexico. ATF continues to meet with the government

of Mexico to discuss deploying a Spanish-language version of eTrace to other agencies

"...Colombia today dedicated its new Explosives Information and Firearms Tracing

center of its kind in South America, will serve as the focal point for all Colombian

military and law enforcement efforts on explosives and firearms tracing. Funded

the Colombian judicial process by focusing on the prevention and investigation

Located on the grounds of the Colombian Judicial Police headquarters here, CIARA

includes the Dfuze international explosives database that ATF helped develop, an

explosives repository, national response and post-blast bomb squads, a biochemical

unit and a firearms tracing program that will be linked to the ATF's eTrace system and

eTrace allows participating law enforcement agencies to submit, via the Internet, firearms

tracing requests in real time and directly to the computer at ATF's National Tracing Center

in the United States. IBIS is the software that allows law enforcement to image and compare

"...The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) National Tracing

Center, a service oriented entity, has developed an electronic interface to its firearm

tracing services, called eTrace....Recovered firearms are traced by Law Enforcement

Agencies a) to link a suspect to a firearm in a criminal investigation; b) to identify

potential firearms traffickers, whether licensed or unlicensed sellers, and ; c) to detect

in-state, interstate, and international patterns in the sources and kinds of gun crimes...

providing approved agencies with a paperless firearm trace submission system that is

readily accessible through a connection to the worldwide web (Internet)...This tool not

only provides users with the ability to electronically submit trace requests, but also to

monitor the progress of traces and efficiently retrieve completed trace requests in a

To access and utilize the eTrace application, the only infrastructure an agency needs

is a personal computer and access to the World Wide Web, thus empowering even the

smallest of agencies to comprehensively trace their firearms and perform on-line data

analysis. eTrace access is achieved by obtaining a valid User ID. and password from

ATF and authenticated using the eTrace site on the internet. Each participating agency

intended to formalize a partnership between the participating agencies with regard to

policy and procedures relative to the access and utilization of eTrace services.

Successful access allows users the ability to enter new traces, view existing traces,

"...The military also has fallen victim to spectacular security breaches, a result of too-rapid

expansion, Defense Minister Juan Manuel Santos acknowledged. ' It's like a child who

grows too fast. There are going to be problems,' Santos said, adding that to clean house,

What, no Cuban paratroopers? Let us hope that the firearms manufacturers do not number their products sequentially:

It sounds like firearms owners and activists are going to have tractor-trailer-sized loads of questions for their elected representatives shortly, given recent press releases from those "service-oriented" souls at the ATFE.

It seems that ATF may have been expanding firearms tracing access in quite a number of foreign locales over the past few years (Germany, Britain, Canada, and Interpol HQ are also on the list). And, in at least in the case of Colombia, foreign law enforcement officials may currently have access to U.S. domestic firearms trace databases. Said databases possibly contain such "possessor" information as names, addresses, driver's license numbers, Social Security numbers, and theoretically even serial numbers of additional firearms that are required by various states to be registered with authorities.

Given the importance of the access of trace information to those mayors and activists currently focused on a "torts" approach to knock down the Tiarht Amendment and deconstruct U.S. firearms ownership, the thought of them being helped by foreign governments who have espoused a long-term support for U.N. personal disarmament policies is distressing to say the least.

Add to this the possibilities towards identity theft and the nature of the human smuggling racket, one could easily think that Neville Chamberlain's reign as the Human Race's Most Gullible Public Official may finally be coming to an end. (What would it truly take to compromise a Columbian police official whose name just happens to be on the latest "Memorandum of Understanding"? Threatening his family with violence? Bribing him with some of the cocaine cartel's pocket change? Both?)

Now, it is possible that access to the eTrace database is more limited, and more thoroughly supervised, than what would seem to be indicated in the press releases documented above and below. Hopefully the ATF can be importuned to "splain" most thoroughly how they are currently guarding some of the most private data that can had in a government database of a free society. Given that DEA and other law enforcement undercover operatives lives may depend upon there being massively strict protocols, the questions cannot be answered soon enough, nor swept under the rug due to the exigencies of the election cycle and the lame-duck status of the current Administration. Interested parties are probably best advised to warm up their word processors and email programs. Otherwise, the Voters From Hell might just come to breakfast if they are not dealt with promptly and thoroughly. Stay tuned.

B. Judge Alito’s Dissent
Judge Alito began his dissent in Rybar by asking, “Was [Lopez] a
constitutional freak? Or did it signify that the Commerce Clause still
imposes some meaningful limits on congressional power?”158 Troubled by
the reasoning of the majority, Judge Alito did not find enough of a
difference between the Machine Gun Statute and the Gun-Free School Zone
Act to have upheld the former’s constitutionality in Rybar.159 Judge Alito,
who “dissent[ed] slightly more often than the typical appeals court
judge,”160 asserted several general reasons why the Machine Gun Statute
should be held unconstitutional. First, Judge Alito’s dissent stated that both
the Gun-Free School Zone Act and the Machine Gun Statute similarly lack
a jurisdictional element in that “they do not require federal prosecutors to
prove that the firearms were possessed in or affecting interstate
commerce.”161 Second, Judge Alito stated that “in passing both statutes,
Congress made no findings regarding the link between the intrastate activity
regulated by these laws and interstate commerce,” and that it is
unreasonable to confine Lopez to its own “peculiar circumstances.”162 Part
II.B.1-2 explores Judge Alito’s reasoning.
1. Judge Alito Rules Out Channels and Instrumentalities
Before addressing what he believed to be the majority’s “two separate
theories”163 for upholding the Machine Gun Statute, Judge Alito first
addressed whether the Machine Gun Statute regulated channels or
instrumentalities of interstate commerce. Judge Alito concluded that the
158. Id. at 286 (Alito, J., dissenting); see Dean A. Strang, Felons, Guns, and the Limits of
Federal Power, 39 J. Marshall L. Rev. 385, 398 (2006) (“Perhaps because the Supreme
Court split 5-4 in Lopez, most federal appellate judges have treated that decision as a
‘constitutional freak,’ to repeat Judge Samuel A. Alito’s colorful term.”).
159. Rybar, 103 F.3d at 286-87 (Alito, J., dissenting). Some commentators have agreed
with Judge Alito’s rationale in finding the similarities between Lopez and Rybar to be
striking. See Debbie Ellis, A Lopez Legacy?: The Federalism Debate Renewed, But Not
Resolved, 17 N. Ill. U. L. Rev. 85, 113-14 (1996) (“Both [the Machine Gun Statute and the
Gun-Free School Zone Act] are criminal statutes which regulate the purely intrastate
possession of guns, both lack jurisdictional elements, and Congress made no findings
regarding the link between the intrastate activity, possession, and interstate commerce.”); see
also Carhart, supra note 82, at 864 (discussing the fact that some commentators have found
Lopez and Rybar to have similarities).
160. Adam Liptak & Jonathan D. Glater, Alito’s Dissents Show Deference to Lower
Courts, N.Y. Times, Nov. 3, 2005, at A1.
161. Rybar, 103 F.3d at 287 (Alito, J., dissenting); see supra note 152 (establishing that
Judge Jones in the U.S. Court of Appeals for the Fifth Circuit came to a similar conclusion in
her dissent).
162. Rybar, 103 F.3d at 287 (Alito, J., dissenting).
163. Id. at 291; see infra Part II.B.2.a-b.
2007] THE MACHINE GUN STATUTE 2289
Machine Gun Statute did not regulate the channels or instrumentalities of
interstate commerce.164 He wrote that the circuits that upheld the statute on
such grounds “fundamentally misunderstood the first category set out in
Lopez.”165 Judge Alito concluded that to justify the statute on the grounds
that Congress is regulating channels of commerce, Congress would have to
have regulated, “for economic or social purposes, the passage in interstate
commerce of either people or goods.”166 Moreover, Judge Alito believed
that the Machine Gun Statute would “fall within this category if it barred
the interstate shipment of machine guns, but of course that is not what it
does.”167 Rather, according to Judge Alito, the statute “goes much farther
and reaches the wholly intrastate possession of machine guns.”168
Judge Alito additionally expressed concern with the reasoning asserted
by the Fifth, Sixth, and Ninth Circuits that “‘there could be no unlawful
possession under [the Machine Gun Statute] without an unlawful
transfer.’”169 First, he argued that a semi-automatic weapon could be
converted by its owner into an automatic weapon.170 Moreover, a person
could have lawfully possessed a gun under 18 U.S.C. § 922(o), which
permits possession under governmental authority “but then exceeds the
scope of that authority or retains possession after it has terminated.”171
Such a transfer could be wholly confined to intrastate activities without
extending to interstate activities.172 Finally, Judge Alito wrote that the
arguments made by the Fifth, Sixth, and Ninth Circuits were more in line
with the third category established in Lopez because they describe activities
that, although intrastate, have an impact on interstate activities.173
Judge Alito summarized instrumentalities of interstate commerce as “the
means of conveying people and goods across state lines, such as airplanes
and trains. This power also reaches threats to people and goods travelling
in interstate commerce, such [as] . . . the setting of rates that could affect
interstate trade.”174 Moreover, Judge Alito wrote that the Machine Gun
Statute would not fall within this category even if Congress “had banned
164. See Rybar, 103 F.3d at 291-94 (Alito, J., dissenting). Although Judge Alito agreed
with the majority’s focus on the substantial economic effects, he still addressed the other two
categories (channels and instrumentalities of commerce) since the majority rationalized the
overall constitutionality of the statute in part because other circuits have justified the statute
under those two categories. Id.
165. Id. at 288; see also supra note 45 and accompanying text (describing the three
categories).
166. Rybar, 103 F.3d at 288-89 (Alito, J., dissenting).
167. Id. at 289.
168. Id.
169. Id. (quoting United States v. Kirk, 70 F.3d 791, 769 (5th Cir. 1995)); see also United
States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United States v. Rambo, 74 F.3d 948 (9th
Cir. 1996); Kirk, 70 F.3d 791; supra notes 151-54 and accompanying text.
170. Rybar, 103 F.3d at 289 (Alito, J., dissenting) (citing United States v. Kenney, 91
F.3d 884, 889 (7th Cir. 1996)).
171. Id.
172. Id.
173. Id.; see also supra note 45 and accompanying text.
174. Rybar, 103 F.3d at 290 (Alito, J., dissenting).
2290 FORDHAM LAW REVIEW [Vol. 75
the intrastate possession of machine guns in order to prevent them from
being used to damage vehicles travelling interstate, to carry out robberies of
goods moving in interstate commerce, or to threaten or harm interstate
travellers.”175
Judge Alito found the reasoning of the Sixth and Tenth Circuits “elusive”
in terms of finding the statute to be constitutional under this instrumentality
category.176 Both circuits described the inherent interstate component of
machine gun travel.177 Confused by how machine gun travel inherently
encompasses interstate travel, Judge Alito summarily wrote that “machine
guns that are simply possessed intrastate and are not travelling in interstate
commerce may not be regulated under the first Lopez category, and as
previously explained, unless they are menacing interstate commerce, they
do not fall within the second category either.”178

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