FFL Persecuted for Years by FBI and ATF Left to Fend for Himself

Some years back, a Federal Firearms Licensee was falsely accused, arrested, held in jail, tried, and ultimately exonerated. Despite that, and in what seems a response motivated by revenge instead of any public safety imperative or moral authority, the Bureau of Alcohol, Tobacco, Firearms and Explosives refuses to allow him to renew his license. And so far, no "gun rights group" has shown an interest in providing legal assistance to restore recognition of his rights.

It's the case of Albert Kwan, a case both Jeff Knox of The Firearms Coalition and I (and very few others) have been following for years. One other source that did was Crime File News, now only available via the Internet Archive. It gives a general background on what precipitated Kwan's falling out with ATF and also offers insights on why the gun groups may be afraid to attach their names to his predicament:

An anti-gun assistant U.S. attorney was murdered. FBI ballistics tests sent them on a search for an after-market replacement barrel for a Makarov pistol and that led them to Kwan, an FFL and collector, to test fire his gun. Since he wasn't involved in that crime in any way (and that's been subsequently proven), "Kwan refused the request because the gun was new and unfired. Kwan's reasoning was that this would destroy the value of his property."

The government response was typically heavy-handed and what we've outrageously come to expect. It resorted to "legal' terrorism:

They obtained a search warrant, kicked his door down and seized every firearm in his home. Kwan legally owned 100 machine guns along with some run of the mill semi-automatic firearms. The Agents took one of Kwan's rifles, a Springfield, semi-automatic M-14 copy, remanufactured the receiver, and installed new parts turning it to a machine gun! Since that Springfield was not registered as a machine gun the agents charged Kwan for the federal felony under the National Firearms Act of 1934… What the agents really wanted was to ‘create' a witness to testify against another suspect they're trying to implicate in the Wales murder. Since they have no other evidence, the FBI set out to destroy Kwan's life.

Knox has documented the government's prolonged attempts to do just that, including what it has cost Kwan in freedom while being arrested and incarcerated in solitary in a federal detention facility, time in fighting the charges, and money, including legal costs and seized and destroyed property, as well as:

This exposure did serious damage to Albert Kwan's reputation, destroying his commercial real estate business, costing him his Top-Secret security clearance, and causing him to be suspended from his position in the US Army Reserves.

Knox adds additional clarification, at least as much as possible. The "rules" are arcane and malleable for a reason, intended to create confusion and be impossible to navigate without falling into traps along the way.

As I understand it, they contacted Kwan and asked to look at his gun collection (housed in his home, along with his home-based FFL business)," Knox recalls. "In accordance with advice from his attorney, Albert told them they would need to talk with his attorney. He subsequently turned over his entire Makarov collection, through his attorney, including the gun with the aftermarket barrel installed, but the investigators were unsatisfied and felt that Albert was being ‘uncooperative,' so they grabbed him at the airport as he was departing for a vacation trip, and held him in federal custody as a ‘material witness' for almost a month. While they were holding him, they obtained a warrant and searched his home and collection, finding nothing. For the search, they invited a BATFE guy along, and after the Wales investigators came up empty, the BATFE guy got another warrant, based on what he had seen in the original search, leading to the charges on the M14 and the HK.

As I understand it, the M14 was a real M14 that was a DEWAT/REWAT and fell into a unique category, as it had been remanufactured as a semi-auto and sold legally as such," Knox continues. "Only a few of these ever made it into public hands, including a few that were sold by the CMP. The whole thing is very complicated, but the bottom line is that the gun was a semi-auto and the jury didn't buy the BS that adding parts and milling and drilling the receiver constituted "readily restored." On the HK, Albert owned a regular semi-auto civilian version of the pistol, as well as a registered SBR, full-auto version. He had two stocks for the SBR, and the BATFE claim was that since the extra stock ‘could' be attached to the semi-auto pistol, that constituted ‘constructive possession' of an unregistered SBR.

As for the charges Kwan was brought to trial on, the first being illegal possession of an unregistered machine gun, as Knox notes, the jury decided it was a semiauto—but because ATF had converted it to fire full auto to try and convict him, there was no "legal" mechanism for them to convert it back and return his property. The jury did side with the government on the second charge, possession of an unregistered Short-Barreled Rifle (again, as noted, Kwan had an HK VP70Z pistol that "was capable of accepting" a shoulder stock, "but the judge learned that the BATFE had misrepresented several pertinent facts, and he reversed the jury verdict, declaring a mistrial."

Despite being exonerated, ATF has rejected subsequent attempts by Kwan to reobtain his FFLs, and the courts have sided with the government. The "rationale," per one of Kwan's attorneys who replied to a query by AmmoLand:

Mr. Kwan had a Federal Firearms License to manufacture guns and ammunition. The ATF found that he was doing neither and found that as a violation. They also found that he failed to cooperate with the inspectors. Those are the reasons his license was revoked.

On the first point, Kwan held several FFLs (dealer, curio and relics, importer), not just manufacturing, and he tells AmmoLand he received an approved Form 1 (Application to Make and Register a Firearm) to establish compliance with "07" manufacturing requirements and was seeking to work with a qualified machinist because he is not one. On the second point, "cooperation" involves submission to inspection and records requirements related to his license. Once the government introduced a criminal homicide investigation into its inquiries, Kwan was well within his rights to refer them to his attorney for cooperation under the advice of counsel, which is exactly what he did. For everything else, as Regent Law Professor James Duane so expertly advises (and ignore him at your peril), "Don't Talk to the Police."

In siding with the government in denying Kwan his FFL, the presiding judge made a curious claim:

In addition, as discussed above, Plaintiff provides no legal authority for his argument that the Second Amendment guarantees a right to deal in firearms and, as a result, cannot challenge the constitutionality of 18 U.S.C. § 923 as it applies to his claim.

That is written like a true slave to pre-Bruen stare decisis (precedent)…

It brings to mind a relevant observation from a motion to file an amicus brief by Edwin Vieira, Jr., submitted in the case of Kolbe v. Hogan, a challenge to Maryland's "assault weapon"/magazine ban.

Per his online bio, Vieira "holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School). For more than 30 years, he has practiced law with an emphasis on constitutional issues. In the Supreme Court of the United States, he successfully argued or briefed the cases leading to the landmark decisions…"

In short, when it comes to the Second Amendment, Vieira knows what he's talking about. And this is what he says about the "right to deal in firearms" that the judge in the Kwan case disparaged:

All militiamen (except conscientious objectors) were to be provided with ‘small arms': long guns and pistols. Those who were financially able purchased their arms in the free market, then possessed them as private property in their homes at all times. Those with insufficient means were supplied with firearms the Militia or some other governmental body usually procured in the market, in most instances retaining possession of those arms whilst enrolled. This reliance on a permanent private market for firearms guaranteed that most militiamen, through their own efforts, could always obtain firearms suitable for both collective and individual self-defense, and forestalled tyranny by precluding rogue public officials from monopolizing the production, distribution, and possession of firearms. [Emphasis added.]

In light of Bruen and its "historical understanding" benchmark, it's difficult to see how an honest legal analysis could continue to support ATF's vindictive vendetta against Albert Kwan.

And speaking of historical understandings, it's interesting to note that when John Belton wrote to the Continental Congress in 1777 informing them he had privately developed "a common small arm, … maid to discharge eight balls one after another, in eight, five or three seconds of time, & each one to do execution five & twenty, or thirty yards, and after so discharg'd, to be loaded and fire'd with cartridge as usual, which I am ready to prove by experimental proof and can with equal ease fix them so as to discharge sixteen, or twenty, in sixteen, ten, or five seconds of time, which I have kept as yet a secret, thinking that in two, or three Months we might have an army thus equipped, which our enemy should know nothing of, till they should be maid to know it in the field, to their immortal sorrow," no one sent shock troops to his door to haul him in and destroy his life over "licensing," or over a "civilian" making "weapons of war."

Ditto for when Samuel Colt received a patent for his revolver in 1836.

As noted, Kwan's finances have been devastated by his decades-long battle for justice. Jeff Knox has been leading the effort to get legal assistance, but no surprise, without the resources and reach of the "big guns," there's no way sufficient funding will be obtained. My own efforts have similarly fallen short, with one notable organization head essentially admitting they didn't want to take his case, presumably due to fallout vulnerability from association with the criminal case Kwan was proven to have nothing to do with.

Our intent is not to name names or embarrass anyone, it is to get Albert Kwan the legal help we can't give him but those with national connections and resources can. To that end, Knox has written a letter to an attorney (purposely left unnamed) who is qualified to advise on all counts, embedded below.

What I am asking of AmmoLand readers is this: If you agree that Kwan has gotten a raw deal, if you see how that can undermine your rights, and if you think that's in your interests to do something about, ask your favorite "pro-gun" group if it will help and encourage your friends to do the same. That's it.

David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at "The War on Guns: Notes from the Resistance," is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.

Reprinted with permission of AmmoLand.