II 

111TH CONGRESS 

1ST SESSION S. 2878 

To prevent gun trafficking in the United States. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 11, 2009 

Mrs. GILLIBRAND introduced the following bill; which was read twice and 

referred to the Committee on the Judiciary 

A BILL 

To prevent gun trafficking in the United States. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Gun Trafficking Pre5 vention Act of 2009’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds and declares that— 

8 (1) in the United States, the black market is 

9 the source for guns used in more than 90 percent 

10 of gun crimes; 


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1 (2) nearly 90 percent of the guns used in gun 

2 crimes in New York City, New York come from 

3 other States; 

4 (3) according to the Federal Bureau of Investigation, in 2008, in the United States, 2 5 ⁄3 of all 

6 murders committed resulted from the use of a fire7 arm, and 2,364 people under the age of 22 were 

8 murdered with a firearm; 

9 (4) the Bureau of Alcohol, Tobacco, Firearms 

10 and Explosives (in this section referred to as the 

11 ‘‘ATF’’) crime gun trace reports show that only 

12 about 1 percent of licensed firearms arms dealers 

13 supply nearly 60 percent of crime gun traces; 

14 (5) ATF has found that Straw Purchasers are 

15 the largest source of guns trafficked into the illegal 

16 market; 

17 (6) then Acting ATF Director Michael J. Sulli18 van’s April 19, 2007, testimony to the Senate Ap19 propriations Subcommittee on Commerce, Justice, 

20 Science, and Related Agencies, named as ‘‘signifi21 cant regional, national and international trafficking 

22 corridors’’— 

23 (A) the Southwest Border; 

24 (B) the I–95 corridor between Miami and 

25 Boston; 


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1 (C) Northern rural Mississippi to Chicago; 

2 (D) Northern Indiana to Chicago; 

3 (E) the triangle between Los Angeles, Las 

4 Vegas and Phoenix; and 

5 (F) Birmingham to Chicago; 

6 (7) there are approximately 2500 agents, and 

7 600 Industry Operator Investigators (in this section 

8 referred to as the ‘‘IOI’’) for the 115,000 Federal 

9 Firearm Licensees in the United States; 

10 (8) the average cycle of inspection is 7 to 10 

11 years; and 

12 (9) ATF needs more resources to prevent guns 

13 from falling into the hands of those persons not le14 gally allowed to possess them. 

15 SEC. 3. TRAFFICKING IN FIREARMS. 

16 (a) IN GENERAL.—Chapter 44 of title 18, United 

17 States Code, is amended by inserting at the end the fol18 lowing: 

19 ‘‘§ 932. Trafficking in firearms 

20 ‘‘(a) IN GENERAL.— 

21 ‘‘(1) OFFENSE.—It shall be unlawful for any 

22 person knowingly, regardless of whether anything of 

23 value is exchanged— 

24 ‘‘(A) to ship, transport, transfer, or other25 wise dispose to a person, 2 or more firearms in 


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1 or affecting interstate or foreign commerce, if 

2 the transferor knows or has reasonable cause to 

3 believe that such disposition would be in viola4 tion of, or would result in a violation of any 

5 Federal, State, or local law punishable by a 

6 term of imprisonment exceeding 1 year; 

7 ‘‘(B) to receive from a person, 2 or more 

8 firearms in or affecting interstate or foreign 

9 commerce, if the recipient knows or has reason10 able cause to believe that such receipt would be 

11 in violation of, or would result in a violation of 

12 any Federal, State, or local law punishable by 

13 a term of imprisonment exceeding 1 year; 

14 ‘‘(C) except a licensed importer, licensed 

15 manufacturer, or licensed dealer, to make mate16 rially false statements to a licensed importer, li17 censed manufacturer, or licensed dealer, relat18 ing to the purchase, receipt, or acquisition from 

19 a licensed importer, licensed manufacturer, or 

20 licensed dealer of 2 or more firearms that have 

21 moved in or affected interstate or foreign com22 merce, for the person, or for or on behalf of any 

23 other person; or 

24 ‘‘(D) to direct, promote, or facilitate con25 duct specified in subparagraph (A), (B), or (C). 


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1 ‘‘(2) PENALTY.—Any person who violates this 

2 section shall be fined under this title, imprisoned not 

3 more than 20 years, or both. 

4 ‘‘(3) APPLICATION.— 

5 ‘‘(A) AFFIRMATIVE DEFENSE.—It is an af6 firmative defense to any prosecution for a viola7 tion of subparagraph (A) or (B) of paragraph 

8 (1) of this subsection or a violation of para9 graph (1)(D) of this subsection that relates to 

10 conduct specified in subparagraph (A) or (B) of 

11 paragraph (1) that the firearm at issue was 

12 transferred only after a background check on 

13 the actual buyer pursuant to section 922(t) in14 dicated that the actual buyer’s receipt of the 

15 firearm would not violate section 922 (g) or (n) 

16 or State law. 

17 ‘‘(B) DEFINITIONS.—In this subsection— 

18 ‘‘(i) the term ‘term of imprisonment 

19 exceeding 1 year’ does not include any of20 fense classified by such jurisdiction as a 

21 misdemeanor and punishable by a term of 

22 imprisonment of 2 years or less; and 

23 ‘‘(ii) the term ‘actual buyer’ means 

24 the individual for whom the firearm is 


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1 being purchased, as described in paragraph 

2 (1)(C). 

3 ‘‘(C) PURCHASE.—Paragraph (1) shall not 

4 apply to a firearm that is— 

5 ‘‘(i) lawfully acquired by a person to 

6 be given to another person not prohibited 

7 from possessing a firearm under Federal, 

8 State, or local law as a gift; or 

9 ‘‘(ii) lawfully received or otherwise ac10 quired by a court-appointed trustee, re11 ceiver, or conservator for, or on behalf of, 

12 an estate or creditor or by a person to 

13 carry out a bequest, or an acquisition by 

14 intestate succession under the laws of the 

15 State of residence of the person. 

16 ‘‘(b) SENTENCING GUIDELINES ENHANCEMENTS.— 

17 Pursuant to its authority under section 994(p) of title 28, 

18 United States Code, the United States Sentencing Com19 mission shall amend the Federal Sentencing Guidelines to 

20 provide for an appropriate increase in the offense level for 

21 each of the following violations of this section, if the of22 fense involves the shipping, transporting, transferring, dis23 posing of, or receiving— 

24 ‘‘(1) more than 4, but fewer than 15 firearms; 

25 ‘‘(2) more than 14, but fewer than 25 firearms; 


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1 ‘‘(3) more than 24 but fewer than 100 fire2 arms; and 

3 ‘‘(4) 100 or more firearms. 

4 ‘‘(c) ORGANIZER.—If a violation of subsection (a) is 

5 committed by a person in concert with 5 or more other 

6 persons with respect to whom such person occupies a posi7 tion of organizer, a supervisory position, or any other posi8 tion of management, that person may be sentenced to an 

9 additional term of imprisonment of not more than 5 con10 secutive years. 

11 ‘‘(d) CONSPIRACY.—Any person who attempts or con12 spires to commit any offense defined in this section may 

13 be subject to the same penalties, including those under 

14 subsections (b) and (c), as those prescribed for the com15 pleted offense.’’. 

16 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

17 The table of sections of chapter 44 of title 18, United 

18 States Code, is amended by adding at the end the fol19 lowing: 

‘‘932. Trafficking in firearms.’’. 

20 SEC. 4. CRACKING DOWN ON CORRUPT GUN DEALERS. 

21 (a) IN GENERAL.—Section 923 of title 18, United 

22 States Code, is amended by striking subsections (e) and 

23 (f) and inserting the following: 

24 ‘‘(e)(1) If the holder of a license issued under this 

25 section knowingly violates any provision of this chapter, 


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1 chapter 53 of the Internal Revenue Code of 1986, the 

2 Arms Export Control Act (22 U.S.C. 2751 et seq.), or sec3 tion 1001 of this title, or any rule or regulation as pre4 scribed by the Attorney General, the Attorney General 

5 may— 

6 ‘‘(A) assess on the licensee a civil penalty of not 

7 more than $2,500; and 

8 ‘‘(B) suspend for not more than 6 months, or 

9 revoke, any license issued under this section. 

10 ‘‘(2)(A) Except as provided in subparagraph (B), the 

11 Attorney General may, after notice and opportunity for 

12 hearing, assess a civil penalty on, or suspend or revoke 

13 any license issued to, a licensee under this section, if the 

14 licensee fails to have secure gun storage or safety devices 

15 available at any place in which firearms are sold under 

16 the license to persons who are not licensees. 

17 ‘‘(B) Subparagraph (A) shall not apply in any case 

18 in which a secure gun storage or safety device is tempo19 rarily unavailable because of theft, casualty loss, consumer 

20 sales, backorders from a manufacturer, or any other simi21 lar reason beyond the control of the licensee, the dealer 

22 shall not be considered to be in violation of the require23 ment to make available such a device. 

24 ‘‘(3) The Attorney General may, after notice and op25 portunity for hearing, assess a civil penalty, suspend or 


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1 revoke the license of a dealer who knowingly transfers 

2 armor piercing ammunition. 

3 ‘‘(4) The Attorney General may suspend or revoke 

4 any license issued under this section if the holder of the 

5 license has been indicted for knowingly violating any provi6 sion of this chapter, chapter 53 of the Internal Revenue 

7 Code of 1986, the Arms Export Control Act (22 U.S.C. 

8 2751 et seq.), or section 1001 of this title in a manner 

9 that could create a threat to public safety. 

10 ‘‘(f)(1) Any person whose application for a license is 

11 denied and any holder of a license which is suspended or 

12 revoked or who is assessed a civil penalty shall receive 

13 written notice from the Attorney General stating specifi14 cally the grounds upon which the application was denied 

15 or upon which the license was suspended or revoked or 

16 the civil penalty assessed. Any notice of a fine, suspension, 

17 or revocation of a license shall be given to the holder of 

18 the license not less than 14 days before the effective date 

19 of the suspension, revocation, or imposition of a civil pen20 alty, unless the Attorney General determines that good 

21 cause exists to waive such notification requirement, in 

22 which case notification shall be given as soon as prac23 ticable. 

24 ‘‘(2) If the Attorney General denies an application 

25 for a license, or suspends or revokes a license, or assesses 


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1 a civil penalty, the Attorney General shall, upon request 

2 by the aggrieved party, promptly hold a hearing to review 

3 the denial, suspension, revocation, or assessment. A hear4 ing under this paragraph shall be held at a location con5 venient to the aggrieved party and shall be conducted pur6 suant to chapter 5 of title 5. 

7 ‘‘(3) If, after a hearing held under paragraph (2), the 

8 Attorney General decides not to reverse the decision to 

9 deny an application or suspend or revoke a license or as10 sess a civil penalty, the Attorney General shall give notice 

11 in writing of the decision to the aggrieved party. The ag12 grieved party may at any time within 60 days after the 

13 date of notice is given under this paragraph file a petition 

14 with the United States district court for the district in 

15 which the party resides or in which the party’s principal 

16 place of business is located for judicial review of the de17 nial, suspension, revocation, or assessment. Such judicial 

18 review shall be conducted pursuant to chapter 7 of title 

19 5. If the court decides that the Attorney General was not 

20 authorized to deny the application or to suspend or revoke 

21 the license or to assess the civil penalty, the court shall 

22 order the Attorney General to take such action as may 

23 be necessary to comply with the judgment of the court.’’. 

24 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 


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1 (1) SECTION 925 OF TITLE 18.—Section 925 of 

2 title 18, United States Code, is amended— 

3 (A) by striking subsection (b); 

4 (B) by redesignating subsections (c), (d), 

5 (e), and (f) as subsections (b), (c), (d), and (e), 

6 respectively; and 

7 (C) in subsection (e), as redesignated, by 

8 striking ‘‘under subsection (d)’’ and inserting 

9 ‘‘under subsection (c)’’. 

10 (2) SECTION 922 OF TITLE 18.—Section 922(d) 

11 of title 18, United States Code, is amended in the 

12 matter following paragraph (9)— 

13 (A) by striking ‘‘subsection (b) of section 

14 925’’ and inserting ‘‘section 923(e)(4)’’; and 

15 (B) by striking ‘‘subsection (c)’’ and in16 serting ‘‘subsection (b)’’. 

17 (3) ARMS EXPORT AND CONTROL ACT.—Section 

18 38(b)(1)(B)(i) of the Arms Export and Control Act 

19 (22 U.S.C. 2778(b)(1)(B)(i)) is amended by striking 

20 ‘‘section 925(e)’’ and inserting ‘‘section 925(d)’’. 

21 (4) ATOMIC ENERGY ACT OF 1954.—Section 

22 161A of the Atomic Energy Act of 1954 (42 U.S.C. 

23 2201a) is amended by striking ‘‘section 925(d)(3)’’ 

24 and inserting ‘‘section 925(c)(3)’’. 


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1 SEC. 5. CHANGE THE STANDARD FOR GUN SELLER FED2 ERAL FIREARMS LICENSE APPROVAL. 

3 Section 923(d)(1) of title 18, United States Code, is 

4 amended— 

5 (1) in subparagraph (C), by striking ‘‘willfully’’ 

6 and inserting ‘‘knowingly’’; and 

7 (2) in subparagraph (D), by striking ‘‘willfully’’ 

8 and inserting ‘‘knowingly’’. 

9 SEC. 6. STRENGTHEN PENALTIES FOR RECORDKEEPING 

10 VIOLATIONS. 

11 Section 924(a)(3) of title 18, United States Code, is 

12 amended by striking ‘‘one year’’ and inserting ‘‘3 years’’. 

13 SEC. 7. CRACKING DOWN ON HIGH-RISK GUN DEALERS. 

14 Section 923 of title 18, United States Code is amend15 ed by adding the following: 

16 ‘‘(m)(1) At least once every year, the Attorney Gen17 eral shall identify licensed firearms dealers who have a 

18 heightened risk of firearms being diverted to criminal use 

19 based on criteria determined by the Attorney General 

20 which may include 2 or more of the following: 

21 ‘‘(A) Short time-to-crime for crime guns traced 

22 to a dealer. 

23 ‘‘(B) Incomplete crime gun trace results for 

24 firearms sold by a dealer. 

25 ‘‘(C) Significant or frequently reported firearm 

26 losses or thefts by a dealer. 


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1 ‘‘(D) Violations of Federal firearms laws by a 

2 dealer. 

3 ‘‘(E) Any additional criteria determined by the 

4 Attorney General. 

5 ‘‘(2)(A) The Attorney General may impose special 

6 conditions on dealers determined to be subject to a height7 ened risk of diversion under paragraph (1) after written 

8 notice 14 days in advance, including— 

9 ‘‘(i) inspection or examination of inventory and 

10 records, notwithstanding subsection (g)(1)(B); 

11 ‘‘(ii) requirements that the dealer secure fire12 arms at its business premises in a manner to be de13 termined by the Attorney General; 

14 ‘‘(iii) mandatory inventory check and reconcili15 ation of firearms at the business premises by the 

16 dealer in a manner to be determined by the Attorney 

17 General and notwithstanding any other provision of 

18 Federal law; 

19 ‘‘(iv) notwithstanding section 922(t)(1)(B)(ii), a 

20 requirement that the dealer not complete firearm 

21 sales or transfers until the national instant criminal 

22 background check system has informed the dealer 

23 that the sale or transfer may proceed; and 

24 ‘‘(v) require that the dealer and employees un25 dergo special training in how to avoid illegal sales. 


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1 ‘‘(B) Conditions may be imposed on a dealer identi2 fied as a high-risk dealer under this paragraph for no 

3 longer than 1 year, unless the Attorney General deter4 mines that the dealer continues to have a heightened risk 

5 of firearms being diverted to criminal use. The Attorney 

6 General shall notify the dealer in writing of any such con7 ditions imposed on such dealer. 

8 ‘‘(3) After the Attorney General has identified a deal9 er as a high-risk dealer and has imposed conditions on 

10 that dealer, a knowing violation by the dealer of any condi11 tion imposed under this subsection shall be considered a 

12 willful violation of this chapter, for the purposes of section 

13 924(a)(1)(D). 

14 ‘‘(4)(A) Any dealer identified as a high-risk dealer 

15 under paragraph (1) may challenge the designation by re16 questing a hearing in writing to review within 60 days 

17 after notice of such designation. 

18 ‘‘(B) If after a hearing held under subparagraph (A) 

19 the Attorney General decides not to reverse the designa20 tion of the dealer as a high-risk dealer, the Attorney Gen21 eral shall give notice of the decision to the dealer. The 

22 dealer may at any time within 60 days after the date no23 tice is given under this subparagraph file a petition with 

24 the United States district court for the district in which 

25 the party resides or in which the party’s principal place 


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1 of business is located for judicial review of the Attorney 

2 General’s designation. Such judicial review shall be con3 ducted pursuant to chapter 7 of title 5. 

4 ‘‘(5) Nothing in this subsection shall be construed to 

5 limit the authority of the Attorney General under section 

6 926.’’. 

7 SEC. 8. GOVERNMENT ACCOUNTABILITY OFFICE STUDY ON 

8 LOST AND STOLEN FIREARMS. 

9 (a) DEFINITION.—For the purposes of this section 

10 the term ‘‘firearm’’— 

11 (1) means any weapon which will or is designed 

12 to or may readily be converted to expel a projectile 

13 by the action of an explosive and the frame or re14 ceiver of any such weapon; and 

15 (2) does not include an antique firearm, as de16 fined in section 921 of title 18, United States Code. 

17 (b) STUDY.—The Comptroller General of the United 

18 States shall conduct a study on firearms in the United 

19 States that are lost or stolen during commercial shipping, 

20 including— 

21 (1) determining the number of firearms that 

22 are lost or stolen during commercial shipping on av23 erage per year; 

24 (2) identifying how firearms are being lost or 

25 stolen during commercial shipping; 


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1 (3) what efforts, if any, to reduce the number 

2 of firearms that are lost or stolen during commercial 

3 shipping are being made by— 

4 (A) Federal law enforcement agencies; 

5 (B) firearm manufacturers; 

6 (C) firearm dealers; and 

7 (D) shipping companies that transport 

8 firearms; and 

9 (4) the role that firearms lost or stolen during 

10 commercial shipping play in interstate and inter11 national gun trafficking. 

12 (c) REPORT.—Not later than 1 year after the date 

13 of enactment of this Act, the Comptroller General of the 

14 United States shall submit to Congress a report that con15 tains— 

16 (1) the results of the study required under sub17 section (a); and 

18 (2) recommendations for how to reduce the 

19 number of firearms that are lost or stolen during 

20 commercial shipping. 

21 SEC. 9. AUTHORITY TO HIRE PERSONNEL TO ADDRESS 

22 TRAFFICKING IN FIREARMS. 

23 (a) IN GENERAL.—The Director of the Bureau of Al24 cohol, Tobacco, Firearms and Explosives may hire addi25 tional personnel sufficient for a firearms trafficking team 


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1 of additional agents, Industry Operations Investigators, 

2 and analysts that would enable the average inspections 

3 rate of gun dealers to operate on a 3-year inspection cycle. 

4 (b) AUTHORITY TO HIRE PERSONNEL TO ADDRESS

5 TRAFFICKING IN FIREARMS.— 

6 (1) IN GENERAL.—The Director of the Bureau 

7 of Alcohol, Tobacco, Firearms, and Explosives shall 

8 hire 500 additional Industry Operations Investiga9 tors and 1,000 additional Special Agents, subject to 

10 the availability of appropriations, for the purpose of 

11 addressing trafficking in firearms, as described in 

12 section 932 of title 18, United States Code, as added 

13 by this Act. 

14 (2) AUTHORITY.—There are authorized to be 

15 appropriated for the hiring and maintenance of 500 

16 additional Industry Operations Investigators and 

17 1,000 additional Special Agents— 

18 (A) $65,593,500 for fiscal year 2011, to 

19 hire 125 Industry Operations Investigators and 

20 250 Special Agents; 

21 (B) $153,735,425 for fiscal year 2012, to 

22 hire 125 Industry Operations Investigators and 

23 250 Special Agents; 


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1 (C) $268,199,200 for fiscal year 2013, to 

2 hire 125 Industry Operations Investigators and 

3 250 Special Agents; and 

4 (D) $387,741,186 for fiscal year 2014, to 

5 hire 125 Industry Operations Investigators and 

6 250 Special Agents. 

Æ 


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