Image from the Associated Press

Today, the House voted to hold Attorney General Eric Holder in contempt of Congress over his failure to turn over documents related to the ATF program dubbed “Fast and Furious.” In case you’ve missed the news, “Fast and Furious” is the term used for an ATF investigative tactic that involved allegedly refraining from seizing guns that ATF agents believed were headed to criminals in Mexico. According to Republicans in Congress, ATF agents refused to seize these guns, even though they knew they were likely to be used in crimes, because they wanted to follow the guns to the criminal ringleaders. However, an article released yesterday in Fortune magazine suggests that the real reason the ATF agents didn’t intercede was because ATF’s legal advisors – the prosecutors who would have had to justify seizing the weapons in court – pointed out that no gun laws were being broken.

No gun laws were being broken? Considering the recent bloodshed in Mexico, this may appear hard to believe. Between 2006 and 2010, more than 23,000 people were killed in drug cartel violence south of the border. When the guns that are used in these crimes are traced, it turns out that 90% of these guns originated from gun dealers in the United States. Almost all of the guns being used by the cartels had originally been purchased at gun shops in the U.S. (mainly in Texas, Arizona, and California), then passed from hand to hand until they reached criminals in Mexico. Surely, you say, this level of gun trafficking can’t be legal.

However, it is extremely plausible that prosecutors told ATF agents that they could not seize the guns. An ATF agent that sees an individual purchase 30 assault weapons from a gun shop and then load them into the trunk of a car is not witnessing a crime. There is nothing illegal about buying so many weapons at one time, under federal law or the laws in most states. Furthermore, there is no federal statute that prohibits a person who has bought a gun at a gun dealership from transferring that gun on the street to someone else without a background check or paperwork, or even checking the person’s ID. Only a handful of states have imposed stronger requirements. The NRA and other gun rights absolutists oppose any attempt to enact stronger gun laws that might impinge on gun industry profits. As a result, the original purchase of the gun and the subsequent resale would only be illegal in very specific circumstances involving complete understanding of the situation by the intermediary. And how could an ATF agent prove what was in that person’s mind?

Given the very narrow circumstances in which an ATF agent would have the legal authority to seize a gun, it is not surprising that guns ended up being used in crimes when ATF agents suspected they would. What is surprising is that Congress has chosen to focus on the ATF agents (and Eric Holder) rather than on the enormous gaps in America’s gun laws which enabled, and continue to enable, so many guns to end up in the hands of Mexican criminals, and which result in such massive losses of life. When are we going to decide to stop playing politics and demand that we need smarter gun laws in this country?