While explosives such as ready-made bombs and major quantities of high-octane powders are subject to stricter regulation and must be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives, federal law exempts several key types of explosives from licensing and background check requirements. Even after the post-9/11 Safe Explosives Act, an individual can buy up to 50 pounds of black powder and any amount of smokeless powder (a more expensive blasting powder that leaves less residue) without undergoing any licensing or background check. Sellers of both products are not required to maintain any record-keeping of their sales, and sellers of smokeless power need not even maintain a license. Black powder is the most common explosive used in pipe bombs because it is so inexpensive, according to a 2005 Department of Justice report. For context, experts say it only takes about three pounds of powder to make one of the pressure-cooker bombs used in the Boston Marathon incident.
Since black and smokeless powders are used as gunpowder, it is unsurprising that the National Rifle Association had a hand in blocking stricter regulation. As a new Violence Policy Center report explains, the NRA and another gun industry trade association lobbied against regulation of black and smokeless powder repeatedly to achieve the now-codified exemptions for gun powders. And the NRA has a particular interest in lobbying for powder regulation, due to “corporate partners” that specialize in the sale of powders, gun accessories or ammunition. In 1970, the gun lobby achieved an exemption for up to five pounds of black powder and all “small arms ammunition” (which includes smokeless powder). Three years later, that exemption was expanded to 50 pounds.
In 1995, former ATF agent and explosives consulting firm president Reynold Hoover warned in an academic paper: “Together, these two ‘unregulated’ bomb ingredients represent one of the greatest threats to the American public posed by bombers.” Nonetheless, when Congress revisited regulation of explosives after 9/11 and expanded the list of persons prohibited from purchasing explosives, it did not close or narrow this gap, meaning the list of people prohibited from buying smokeless powder or less than 50 pounds of black powder includes, effectively, nobody. Ammunition powder is also regulated under the Gun Control Act along with bullets and other ammunition and does include a theoretical list of individuals prohibited from purchasing ammunition. But that law does not even require sellers of ammunition to be licensed, let alone perform background checks or even age verification, so sellers never determine whether the purchases are legal.
Explosives are no doubt particularly difficult to regulate. Unlike guns, explosives can be used both as a weapon and for a variety of other legitimate purposes, from industrial and construction use, to entertainment in fireworks and other pyrotechnics shows, to private commercial use of lower-grade fireworks. Commercial fireworks like the ones Tamerlan Tsarnaev reportedly bought are regulated separately by the Consumer Product Safety Commission, though states and localities have their own commercial fireworks laws. While some major fireworks are banned for personal use, a host of others permitted, with limitations on the amount of powder and other chemicals that can be in any given firework. This means that, so long as the federal government does not improve its fireworks regulation, even beefed up explosives regulations would not thwart a committed bomber willing to travel to other states and collect enough gunpowder piecemeal. The head of a fireworks trade group told the Wall Street Journal this week that the industry would be willing to consider other safety measures, such as better tracking of purchases, should it turn out that the fireworks were used to make the bomb.
Even more difficult to overcome are Internet recipes for “homemade” blasting powders using chemicals available in household products. But studies have found that a significant proportion of bombings reported to the ATF utilized black powder. Sen. Frank Lautenberg (D-NJ) proposed a bill last week that would require a background check before any purchase of explosive powders, and would make it illegal to manufacture homemade explosives without a permit. The bill, of course, is likely to fall under the same NRA chokehold that blocked Lautenberg’s other, more prominent background checks bill.