In his 2019 gun violence prevention policy platform then-presidential candidate Joe Biden pledged to “ensure that the authority for firearms exports stays with the State Department, and if needed, reverse a proposed rule by President TrumpDonald TrumpTexas announces election audit in four counties after Trump demand Schumer sets Monday showdown on debt ceiling-government funding bill Pennsylvania AG sues to block GOP subpoenas in election probe MORE."
Today, March 9, marks one year since Trump put that proposed rule into effect. Now-President BidenJoe BidenTexas announces election audit in four counties after Trump demand Pennsylvania AG sues to block GOP subpoenas in election probe House passes sweeping defense policy bill MORE can and should reverse it.
At one level, the Trump policy change was a bureaucratic shuffling of authority among executive departments — an easy thing for Biden to undo. More fundamentally, it has risked weakening human rights scrutiny and careful oversight of firearms exports, likely making it easier for human rights abusers, criminal gangs and terrorists to get their hands on U.S.-supplied weapons.
The needed reversal would put administrative oversight of the export of many types of firearms, including semi-automatic rifles and pistols, as well as sniper rifles, back under the jurisdiction of the Department of State (DOS) where they were for decades on something called the U.S. Munitions List (USML). By moving them over to the Department of Commerce (DOC), the Trump administration not only redefined these weapons as primarily commercial objects, but it sidestepped a specially required Congressional notification for potential sale of them. In recent years, congressional oversight has been critical in stopping transfers where there are significant human rights concerns, including specifically to the Philippines and Turkey.
Outside the halls of Congress, opposition to the new rule has remained strong. The vast majority of the thousands of public comments received in 2018 about the then-proposed change were negative. In 2019, a diverse group of more than a hundred religious, gun violence and domestic violence prevention, human rights, education, arms control and peace organizations issued a letter opposing the rule change. Letters have continued in the interim, with a coalition of more than 85 gun violence prevent groups calling for the now-enacted rule to be reversed amongst their comprehensive November recommendations to the incoming administration.
Inside Congress, putting items back on the USML would not require any new resolutions. Congress would be regaining oversight, not losing it. And, in 2019, the House's National Defense Authorization Act called for keeping the original rule in place — a show of support.
In sum, the president can do this on his own and has plenty of allies.
The reasons for acting are compelling.
The semi-automatic and many of the other weapons in question are precisely the same ones at the heart of too many mass shootings and community tragedies in the United States. With a president who has said that there is "no longer a bright line between foreign and domestic policy," it is a striking disconnect between making it easier to sell these weapons abroad while trying to deal with their harm at home. (In fact, they remain on the USML Import List when they are sold into the United States.)
The rule change, announced to fanfare by the gun lobby just in time for the 2020 Shooting, Hunting, Outdoor Trade Show and Conference (SHOT) and Commerce Department-led training on how to increase sales, appears to be feeding an export boom. Census trade data compiled by analyst John Lindsay-Poland comparing the last six months of 2019 with the final six months of 2020, when the impacts of the new rule could be most apparent, show that international sales of semi-automatic pistols from the U.S. jumped by 124 percent. A short list of recipient countries of concern for those weapons and handguns include Thailand (recently rated "not free"); Mexico, Brazil and the Philippines (where gun violence runs rampant, at times perpetrated or fed by government actions); and Saudi Arabia (where serious human rights concerns abound).
These are countries where we should be expressing more care. Returning export authority for these weapons to the DOS, where human rights concerns can be better accounted for and where Congress would again receive notifications, is a critical step. But alone, that is not sufficient. As a DOS inspector general audit in 2019 uncovered, there are significant concerns about how licensing is managed internally. Today, the DOS remains a partner in the interagency review process, drawing into question the wisdom of many of their decisions before and after the shift to the DOC. Due to the Trump-era hollowing out, Biden needs also to sufficiently fund the DOS’s capacities and make sure it better prioritizes human rights concerns.
The advice I gave in testimony to Congress nearly two years ago remains the same, but is now more urgent. "We must be mindful that we are not talking about benign trade commodities, but rather the types of killing machines that are arguably the ones most responsible for death and injury in conflict worldwide. Export of small arms deserve[s] the highest level of oversight and attention from the executive branch and the Congress."
Biden can and should take the first critical step by returning firearms to the USML under the DOS oversight.
Jeff Abramson is a senior fellow for conventional arms control and transfers at the Arms Control Association.