A plan by President Barack Obama to close a loophole which allows Americans to buy weapons such as machine guns, grenades and sawn-off shotguns without undergoing background checks is set to be delayed, due to intense opposition from the NRA and other anti-gun-control activists.



An executive action announced by the White House last year said that all members of legally certified trusts buying or receiving federally regulated weapons would need to identify themselves by submitting photographs, fingerprints and a signed approval from a local law-enforcement chief to US authorities.

Unlike individuals, such so-called “gun trusts” can currently take ownership of weapons regulated under the National Firearms Act (NFA) without providing identifying information when registering the items with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

"It's simple, it's straightforward, it's common sense," Vice President Joe Biden said as he announced the executive action last August. “We're going to get this done.”

But senior ATF officials have told industry groups that a June 2014 deadline for publishing the new rule is expected to be pushed back into 2015, due to the scale of opposition expressed during a public consultation phase.

About 9,500 comments, most of them critical, were received. The ATF must consider and reply to the more than 8,400 comments it accepted as valid. Some run to hundreds of pages of legal argument.

The NRA said in its own submission that “the rule is flawed in its legal and factual premises and is unworkable in practice” and “illegal for the ATF to impose”. Some lawyers specialising in gun law have threatened to sue the government if it attempts to implement the rule, and are urging clients to take advantage of the delay.

At a closed law seminar at the NRA's annual convention in Indianapolis last week Sarah Gervase, the group’s assistant general counsel, claimed that ATF officials who wanted to tighten the rules on trusts had told Obama “it's your lucky day” when he was considering responses to the shooting deaths of 20 children and six adults at Sandy Hook elementary school in Connecticut in December 2012.

Other gun-industry lobby groups have voiced similar opposition.

“We don’t believe that it is necessary to do a background check on everybody,” Lawrence Keane, the general counsel of the National Shooting Sports Foundation (NSSF), told the Guardian, adding that a check on one named trustee should be enough.

The number of gun trusts has risen sharply in recent years. Almost 41,000 applications to register restricted weapons to trusts or corporations were filed with the ATF in 2012, according to the agency – more than three times the number,12,900, in 2009. The number is believed to have increased again in 2013 as Obama and some Democrats in Congress advocated tighter gun controls.

“There accordingly has been an increase in the number of individuals who have access to NFA firearms but who have not undergone a background check,” Eric Holder, the attorney general, wrote in his formal proposal for Obama’s executive action, last September.

Some licensed gun dealers do choose to carry out background checks on people buying weapons for trusts.



A spokesman for Everytown for Gun Safety, the new pressure group established by former New York mayor Michael Bloomberg, said Obama’s rule change “shuts down an obscure and sneaky legal manoeuvre”.



“The most important thing we can do to prevent the gun violence that kills 86 Americans every day is enforce criminal background checks on all commercial gun sales,” said the spokesman, who added that the group backed the administration’s efforts to “make sure criminals and other dangerous people aren't bypassing these important safeguards to acquire machine guns”.



Lawyers who create the trusts claim that they are used by legitimate and safe gun-owners. Several claimed that the vast majority were convened to give family members shared access to weapons now, or to guarantee that firearms would stay in the family if the owner died after a ban on transferring such items was introduced by the government of the day.



But Gervase said in her seminar: “The primary purpose that these gun trusts exist is to allow individuals who can not obtain CLEO [chief law-enforcement officer] certification to obtain NFA firearms. There are other reasons why trusts exist, but that is the primary reason.”

Gervase added in her accompanying materials that gun trusts “do not have the same reporting and disclosure requirements that other organisations may have”.



Thomas Odom, a Pennsylvania attorney specialising in gun law, explained: “There are many places in the United States where a sheriff or a chief of police unilaterally decides that they will simply not sign the forms, regardless of the applicant's background.”

Gervase said in her seminar that some object to any civilians owning the weapons at all, some fear criminal liability, and others lack the resources to handle the paperwork.



Holder said in his written proposal that the ATF had recently discovered a person who was banned from owning NFA-controlled items attempting to transfer a regulated silencer to a trust that he had established, after having his application as an individual rejected.



However, gun trust lawyers deny this is a significant problem.

“Criminals don't tend to follow the rules and the law,” said David Goldman, a Florida attorney. “There are plenty of laws in place to restrict the ability of people who shouldn’t have these firearms from purchasing them.”

Knox Williams, the president of the American Silencer Association, said: “If someone purchases a suppressor in a trust and allows someone else to use it for nefarious purposes, it is still illegal.”



Gervase told her audience she knew of one attorney who had successfully threatened a chief law enforcement officer with a lawsuit if he refused to sign the paperwork.

“It worked, the CLEO signed, but that was just because the CLEO didn’t know the law, and he was gullible,” she said. “If you can get away with that, go for it.”

Odom warned that any final rule would be “subject to review by the courts”.



In any case, the implementation of the new rule appears to have staved off for the time being by the vehement opposition lodged with the ATF. Williams, of the American Silencer Association, said he and colleagues had been told by senior ATF officials in a meeting in Nevada in January that “they received more comments than they anticipated, and because of that, the final ruling likely won’t be issued until next year”.

Other industry representatives said that they too were now expecting such a delay.



Janice Kemp, a spokeswoman for the ATF, confirmed that implementation of the new rule “could be later” than was initially planned, “because of how many comments they got”.

She said: “It takes them some time to get through them all.”

The rule could also be amended or watered down if ATF officials accept any of the objections it received.



The delay seems likely to allow thousands more weapons registrations through trusts.

“There is a window of opportunity here. 1 June is not the drop-dead date,” said Odom. “People who are concerned about the direction the law might change in can at this point operate under current law to get some things done, and not have to worry.”

