March 6, 2015 at 1:45 p.m.
ATF moves to ban ammo for popular hunting rifle
ATF moves to ban ammo for popular hunting rifle
According to a draft regulatory "framework," the Bureau of Alcohol, Tobacco, Firearms and Explosives would reinterpret an almost 30-year-old law regulating armor-piercing ammunition. The reinterpretation would remove an exemption for a popular AR-15 ammunition, M855 cartridges.
Specifically, the executive action would outlaw the manufacture, importation and sale of the ammunition. In the wake of the Sandy Hook shootings in late 2012, President Barack Obama tried but failed to get the AR-15 itself banned.
The U.S. Department of Justice says the ATF began drafting the framework because it had received more than 30 exemption requests from ammunition manufacturers over several years and needed a fair "metric" by which to evaluate each request.
But the National Rifle Association and others say the administration is attempting to use the regulatory back door to get the gun ban by banning the ammunition for it.
"If they can't ban the pie, so the thinking apparently goes, they might at least get the apples," the NRA posted on its website.
The framework
As the ATF's "framework" observes, federal statutes are intended to protect the lives and safety of law enforcement officers from ammunition capable of penetrating a protective vest when fired from a handgun. It prohibits the import, manufacture, and distribution of "armor-piercing ammunition."
However, the law allows for the exemption of ammunition that would otherwise be considered armor piercing if the attorney general determines that the ammunition is "primarily intended to be used for sporting purposes." That has been the case with M855 rounds.
Now, though, because so many requests for exemptions are coming in, the agency says it developed a framework by which to determine which ammunition would qualify, and the first thing the agency had to do, the proposed framework states, was to make sure that the "sporting purposes" exemption protected law enforcement officers.
"That is, the Attorney General must determine that a specific type of armor-piercing projectile does not pose a significant threat to law enforcement officers because the projectile at issue is 'primarily intended' for use in shooting sports, and is therefore unlikely to be encountered by law enforcement officers on the streets," the framework states.
The question is, the ATF asked, when the statute talks about intent, to whose intent does it refer?
To that of the manufacturer, which intends the ammunition to be used in rifles for hunting and target shooting? Or to that of a criminal, whose intent is to use it to penetrate the body armor of police?
To assess those competing views, the ATF said it was bound by the plain language of the statute and the statutory framework, and guided by the courts.
To wit, Congress considered but did not adopt standards defining armor-piercing ammunition based on the intended use envisioned by manufacturers, the ATF observed.
"Instead, Congress adopted a two-prong definition, the first of which contains an objective standard focused on whether ammunition comprised of enumerated metals may be used in handguns," the framework states.
As such, the agency continued, it would make little sense for Congress to reject an approach focusing on a manufacturer's intent and for the attorney general to then exempt ammunition based on such intent.
On the other hand, the ATF asserted, the inclusion of the exemption showed that Congress anticipated that certain types of armor-piercing ammunition could be manufactured and distributed for sporting use without creating a significant risk to law enforcement.
"Consequently, for purposes of applying the exemption, the intent of one group of potential consumers (criminals) is no more determinative than the intent of manufacturers," the ATF concluded.
That requires the agency to use "objective criteria" to determine statutory intent, the ATF stated. And the only objective way to determine intent is to focus on the likely use of the ammunition, the agency continued.
Indeed, the agency pointed to a Supreme Court decision involving the definition of drug paraphernalia to conclude that an objective analysis of whether an item is "primarily intended" for a specified use must focus on the likely use of that item.
"Determining the 'likely use' in the general community of any type of ammunition necessarily involves examination of the cartridges in which the armor-piercing projectiles can be loaded, and the handguns that are readily available to accept those cartridges," the framework states. "When the only readily available handgun that can accept a cartridge containing the projectile is objectively and primarily sporting, it may reasonably be inferred that the likely use of that projectile will also be objectively and primarily sporting."
Then, too, the ATF continued, when a handgun's objective design is not limited to primarily sporting purposes, such as handguns designed to be carried and concealed, one could reasonably conclude that ammunition that can be used in such guns is unlikely to be used primarily for sporting purposes.
What does all that mean? For one thing, the ATF contends, it means ammunition that can only be used in single-shot handguns should be exempted because they are generally large, heavy handguns used for traditional sporting purposes.
"Further, these single-shot handguns are ineffective crime guns because of their limited ammunition capacity," the framework states. "In light of the limited utility of such handguns as crime guns, ammunition which may only be used in these firearms poses minimal threat to law enforcement officers."
But that's not necessarily the case with handguns with larger ammunition capacities, the ATF stated.
"Revolvers and semi-automatic handguns, which are designed to be loaded with multiple rounds of ammunition that can be fired and reloaded quickly, differ substantially in design and function from single-shot handguns," the framework states. "The likely use of revolvers and semi-automatic handguns in the community varies, and the projectiles they use are, in many cases, interchangeable among models designed to use the same or similar calibers. Consequently, it is not possible to conclude that revolvers and semi-automatic handguns as a class are 'primarily intended' for use in sporting purposes."
Therefore, the agency concluded, because those guns are not "primarily intended" for sporting use, the ammunition those guns use also cannot be considered as primarily intended for sporting use. Thus, the exemption applies only to ammunition for which the only handgun that can use it is a single-shot handgun.
The M855
That reasoning brought the ATF around to the M855, which has enjoyed an exemption since 1986. That's because, the ATF acknowledged, "it is well documented" that the ammunition "has been recognized as being suitable for target shooting with rifles due to its accuracy."
Under the new framework, the ATF said, the M855 would not be exempted because it can be loaded into handguns other than a single-shot handgun, including semi-automatic AR-type handguns. To ensure consistency, the ATF stated, it must withdraw the exemption, even though it recognized that it is widely available to the public .
Not to worry, though, the agency stated, because it won't prosecute those who already have the ammunition.
"Because it is legally permissible to possess armor-piercing ammunition under current law, withdrawing the exemption will not place individuals in criminal possession of armor-piercing ammunition," the ATF stated. "However, with few exceptions, manufacturers will be unable to produce such armor piercing ammunition, importers will be unable to import such ammunition, and manufacturers and importers will be prohibited from selling or distributing the ammunition."
Outcry
Those who see the proposed framework as a de facto gun ban are mobilizing opposition to the proposed executive action.
The NRA, for example, has been working with U.S. Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, to draft a letter to the ATF expressing lawmakers' opposition.
The proposed framework, the letter asserts, does not establish an objective test so much as it puts in place an unduly restrictive standard. As such, the letter contends, it does not comport with the letter or spirit of the law, and would interfere with Second Amendment rights by disrupting the market for ammunition that law-abiding Americans use for sporting and other legitimate purposes.
For one thing, the letter claims, the ATF's test turns out not to be so objective because, even for ammunition for which the only available gun is a single shot, the agency "retains the discretion to deny any application for a 'sporting purposes' exemption if substantial evidence exists that the ammunition is not primarily intended for such purposes."
So the objective criteria gives the agency a subjective loophole.
Not only that, Goodlatte continued, the ATF is not only mangling congressional intent but ignoring how the ammunition has been actually used over the past 30 years.
"Yet this round is amongst the most commonly used in the most popular rifle design in America, the AR-15," he wrote. "Millions upon millions of M855 rounds have been sold and used in the U.S., yet ATF has not even alleged - much less offered evidence - that even one such round has ever been fired from a handgun at a police officer. The idea that Congress intended (the law) to ban one of the preeminent rifle cartridges in use by Americans for legitimate purposes is preposterous."
Beyond the ammunition ban, the letter contends, the framework contains other serious flaws.
"It will, for example, inhibit the development and use of rifle ammunition containing non-lead materials, even as efforts are afoot both at the federal and state levels to impose bans or restrictions on lead ammunition," the letter states. "The eventual collision of these trends could result in drastically reduced options for lawful ammunition users."
No provision of federal law is intended to restrict the development of ammunition or handguns that were designed and intended to be used by private citizens for legitimate purposes, the letter asserts.
"Instead, (the law) should be construed in accordance with the American tradition of lawful firearms ownership, as protected by the Second Amendment," Goodlatte wrote. "The term 'primarily intended to be used for sporting purposes' should be broadly understood to incorporate the many legitimate uses Americans make of their firearms including target practice, hunting, organized and casual competition, training and skills development, and instructional activities."
As such, he wrote, the framework does not comport with the law's meaning and intent and should be abandoned.
"ATF should refocus its efforts on serious threats to law enforcement officers from specially designed armor-piercing projectiles that are intended for use in the sort of handguns commonly carried and concealed by criminals," the letter stated. "Under no circumstances should ATF adopt a standard that will ban ammunition that is overwhelmingly used by law-abiding Americans for legitimate purposes."
Finally, Goodlatte expressed concern about the way in which ATF issued the proposed framework, saying it had not been published in the Federal Register, as required of proposed rulemaking.
Goodlatte and House majority leader Kevin McCarthy (R-Calif.) said the effort was the administration's latest attempt to push its left-wing agenda through executive fiat.
"After the American people's representatives have repeatedly rejected the president's policies such as taxing carbon - this administration is again attempting to usurp constitutional power and act on its own," McCarthy and Goodlatte said. "Two weeks ago, in typical 'news-dump' fashion on a Friday, the Bureau of Alcohol, Tobacco and Firearms issued an onerous 'Framework' that, if implemented, would result in a de facto ban on common ammunition that is popular and affordable for American hunters and sportsmen. Because the president failed to ban certain firearms in the past, the Administration is now twisting current law to go after ammunition. This is unacceptable."
Richard Moore may be reached at [email protected].
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