Most Read
Image 01 Image 02 Image 03

Retribution? ATF Bans Common Rifle Ammo

Retribution? ATF Bans Common Rifle Ammo

A sudden decision from BATFE

On Wednesday, February 11, the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) suffered a humiliating federal court defeat that struck at the very core of its power.  In response, it took the DOJ and the BATFE only two days to petulantly strike back at gun owners in the form of a late Friday order intended to ban a major type of ammunition for the single most commonly purchased rifle. (The BATFE’s “framework notice” released Friday evening is embedded at the bottom of this post.)

Last week’s federal court summary judgment against the government in Mance v. Holder struck down a key provision of the Gun Control Act of 1968 (GCA) requiring all interstate handgun transfers to pass between FFLs in each state was struck down as an unconstitutional infringement of the 2nd Amendment under both strict and intermediate scrutiny, as well as on 5th Amendment Due Process grounds. (We covered that decision in detail right here at Legal Insurrection: Federal Court: Handgun Transfer Ban Unconstitutional, and the PDF of that court order can be found at that link.)

Never before had the Gun Control Act of 1968 been so grievously wounded, and the BATFE’s authority so profoundly shaken, and lawful American gun owners were appropriately ecstatic.

Like any wounded beast, of course, the BATFE faced an existential imperative to reassert their authority, and late Friday afternoon (in a move that’s long ago become standard operating procedure for the Obama administration) they did so with a vengeance.

A provision of the GCA was intended to ban the availability of armor piercing ammo in pistols–these bullets were characterized as “cop-killer” bullets, because of their potential ability to pierce a police officer’s “bullet proof” vest.

In order to get this provision passed into law, supporters of the GCA agreed to exclude rifle ammunition from this restrictions.  The reason for this was simple–most any rifle round will zip through a typical LEO “bullet proof” vest like it wasn’t there.  Applying this ban to rifle ammo would have effectively immediately banned almost all rifle ammo.  (Bob Owens at BearingArms.com has excellent background on these negotiations and the concession of GCA backer Senator Patrick Moynihan to this exclusion of rifle ammunition from this restriction.)

When the GCA was actually signed into law, however, the exclusion of rifle ammunition from the “armor piercing” restriction was left rather ambiguous.  Instead of imposing the “armor piercing” restriction on ammunition designed to be used in a handgun, it imposed the restriction on ammo that may be used in a handgun.

Handguns capable of firing rifle ammunition have, however, existed for many decades.  A well-established model, the Thompson Contender, had been manufactured in a wide range of rifle calibers.

In recent years, a great many handguns have been built based on the underlying design of the very popular AR-15 rifle.  These AR-based pistols fire the same ammunition as the AR rifles–most commonly 5.56 x 45 or .223 Remington (not quite exactly the same, but close enough for our purposes). (The featured image atop this page, sourced from the MDShooters gun forum, shows a whole and cross-sectioned 5.56 x 45 round.)

One of the most common types of 5.56×45 ammo is the type specified for military use, commonly referred to as M855 or SS109.  It is this round that the BATFE is attempting to effectively ban, by suddenly claiming it as an armor piercing round that may be used in a handgun.

The fact that these rounds have been used in handguns for many decades, but only now, 47 years after the GCA was passed, has it occurred to the BATFE to ban them outright, seems to me far more likely to be attributable to their stinging defeat last week in Mance v. Holder than any sudden good faith realization that they’d somehow overlooked this “necessary” ban in the past.

The statutory fix to this over reach by the BATFE ought to be simple–simply replace the words “may be used” with “designed to be used” in the relevant section of the GCA.  Naturally, Obama would never sign such a fix as a stand-alone bill, so it must necessarily be attached to something he finds otherwise compelling enough to sign.

Better, of course, would be to simply repeal the atrocity that is the GCA entirely.  No other fundamental, personal, constitutionally protected civil right faces anything like the tremendous regulation–nay, infringement–as does the right of Americans to keep and bear arms.

This action will, of course, energize gun owning Americans across the nation against the President’s party. I imagine more than a few Democrats whose districts are somewhat less liberal than San Francisco are turning to their staff and asking, “Obama did what now?”

As promised, here’s that ATF “framework letter” released late Friday evening:

–-Andrew, @LawSelfDefense


NEW! The Law of Self Defense proudly announces the launch of it’s online, on-demand state-specific Law of Self Defense Online Training.  These are interactive, online versions of the authoritative 5-hour-long state-specific Law of Self Defense Seminars that we give all over the country, but from the convenience of your laptop, tablet, or smartphone, and on your own schedule.  Click over for more information on our state-specific Law of Self Defense Online Training, and get access to the ~30 minute Section 1. Introduction for free.

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments

I wonder if this recent move complied with the Administrative Procedures Act?

“According to the Attorney General’s Manual on the Administrative Procedure Act, drafted after the 1946 enactment of the APA, the basic purposes of the APA are:

to require agencies to keep the public informed of their organization, procedures and rules;
to provide for public participation in the rulemaking process;
to establish uniform standards for the conduct of formal rulemaking and adjudication;
to define the scope of judicial review.”

Source: Wikipedia, yes it is that obvious.

I would submit that, assuming this rule had been the subject of previous public participation, that this rule making probably violated the general requirements of formal rule making and adjudication, in light of a recent judicial decision.

Maybe somebody has a good answer to this question, and I would like to see it.

…….. gonna have to drag this into the supreme court as well?

This takes effect immediately?

I got the following from Dave Hardy at http://armsandthelaw.com/

He points out the BATFAGS may not even know their own law. Big surprise.

Comments are open until March 15. They can be emailed to [email protected] or faxed to (202) 648-9741.
———————————–

I have some trouble understanding how the M855 fits the statutory definition of AP ammo. It has a two-part core, with a steel penetrator in front and a lead core behind it, under the standard copper-alloy jacket. The statute provides:

“(B) The term “armor piercing ammunition” means–

(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or

(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.”

(i) doesn’t seem to fit: the neither the projectile nor its core are “constructed entirely” of any of the metals named. The M855 core is lead and steel, not just steel.

(ii) doesn’t fit either: the M855 isn’t designed or intended for use in a handgun, its jacket is less than 25% of the weight of the projectile, and it’s debatable whether .223 can be called “larger than .22 caliber.” (if the bore is expressed in hundredth of an inch, as here, the larger next step would be .23 caliber).

    You really don’t think that Holder or Obama will let a little thing like the letter of the law deter them, do you?

    (i) says “entirely from one OR A COMBINATION.” It does NOT need to be made of only one of those metals, a combination fits the definition.

    –Andrew, @LawSelfDefense

      blcartwright in reply to Andrew Branca. | February 16, 2015 at 5:54 pm

      “constructed entirely (excluding the presence of traces of other substances) from one or a combination of…”

      IOW, the bullet is entirely composed of one of more items from the list, except for trace substances.

      Lead is not on the list and if it is present in more than a trace, then it does not fall under this language

        It doesn’t say a combination of ONLY those listed metals. Anything that INCLUDES a combination of those metals would meet the standard as written.

        If a law bans cartridges possessing any combination of primer, brass, powder, adding a bullet doesn’t escape the ban.

        –Andrew, @LawSelfDefense

          No lawyer here, but a plain language reading of that paragraph would seem to support blcartwright’s interpretation. What are we missing?

          If a banned combination of ingredient chemicals makes up, say illegal meth, and you add an additional ingredient, say a blue food coloring, that doesn’t make the illegal meth into something that’s not illegal.

          The combination still exists. SS109 rounds HAVE combination of steel and copper. Adding lead doesn’t do away with the prohibited combination.

          The prohibited combination exists even if you add additional components.

          If someone can find the word “exclusive” as a modifier of “combination,” I’ll be the first to concede.

          But I don’t see “exclusive” in there.

          –Andrew, @LawSelfDefense

          Unless your argument is “entirely (from one or a combination).”

          That’s not an unreasonable argument, but it’s no stronger than “(entirely from one) or (a combination)”.

          Bottom line, the mere fact that we’re parsing such ambiguous language in an effort to defend our Constitutionally protected rights means that we’ve missed the real battle.

          There simply shouldn’t BE such language in play.

          The win is NOT winning our interpretation of the enemy’s terms, but to defeat the enemy.

          –Andrew, @LawSelfDefense

          Phillep Harding in reply to Andrew Branca. | February 16, 2015 at 9:10 pm

          Sort of like: “Once they have you asking the wrong questions, they don’t have to worry about the answers.” – Slothrup’s Third Proverb ?

          “Entirely of” is synonymous with “exclusively of” in my reading. I realize we’re in the weeds here, but seems the plain language should count for something. 0.02

          blcartwright in reply to Andrew Branca. | February 16, 2015 at 11:26 pm

          the ‘or’ means – composed entirely of one, or, composed entirely of a combination

“From the perspective of law enforcement, however, the most relevant intent is that of a criminal who seeks to use ammunition capable of penetrating body armor when fired from a handgun.”

Or, the criminal class…or those using a “criminal class” dummy…get to call the tune, as opposed to the great population of law-abiding consumers.

Here’s the funny part…if I’m a criminal intent on killing armored LEOs, I CAN certainly source REAL armor-defeating rounds. They ARE out there. If I’m gonna prepare to kill LEOs, what will stop me having a few minor things like verboten ammo?

“ATF nevertheless 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.”

OK. Let’s see the body of evidence the ATFluckers have amassed.

Right now. Today. Not when they find a lost hard drive.

The DoJ is a ten year old.

I’ve been surprised that it’s taken the gun banner’s this long to figure out all they have to do is ban ammunition and their true goal will be 90% won.

Already many states regulate who can own ammunition and not just age limits but also whether one has a weapon that needs that type of ammo. You must sign for every ammunition purchase and certain types of easily available ammunition elsewhere is banned in some states.

The next major thrust will take place on the cost. Some scheme will find daylight that will tax or place fees on ammunition purchase and ownership.

This is how they won the ban on cigarettes because they knew and still know they can’t ban the actual product as that would be unconstitutional. So they raise the rates and force smokers to only certain areas meant to be as discriminating and embarrassing and as uncomfortable as possible. And yet they haven’t succeeded yet in getting rid of smoking, just made it more expensive and increased smuggling.

This will be the outcome for Ammo taxes also but it will be slightly easier to enforce and the penalties will be more draconian.

To heck with repeal of the GCA, repeal the BATF.

    Phillep Harding in reply to jakee308. | February 16, 2015 at 9:13 pm

    Certain sources on the internet, not accessible to me, claim that ammo imports are being blocked.

    Might not be the paranoia I originally thought.

      Lina Inverse in reply to Phillep Harding. | February 17, 2015 at 8:39 am

      The facts on the ground, like what I can buy from my favorite mail order company that’s imported, say they’res no broad based import ban. Check out the NSSF’s web site, they have figures on importation of guns and ammo.

Time to go south of the border, or perhaps the Levant, to buy back the federal redistribution of firearms and bullets.

This armor piercing ban is not new. It started with Elite Ammunition about 4 years ago. See http://www.thetruthaboutguns.com/2011/08/robert-farago/atf-raid-elite-ammunition-confiscate-armor-piercing-brass-bullets/

This is the second time I have seen this conspiracy theory. The first time was about the AR-15 pistol brace.

This is also a big hit to ATK (ignore for the moment that they’ve just split into two companies). The manufacture this M885 ammo as well as the older and cheaper all lead plus jacket M193 at the government’s Lake City, Missouri plant (note the head stamp has the NATO cross in a circle, “LC” for Lake City, and the last two digits of the year of manufacture).

In an amazingly good win-win-win deal with the government, the latter can cancel contracts and ATK can just sell the surplus to us (usually the Federal brand, prepending an X to the type, for example XM885), they conveniently did so for 100 million rounds of M193 in the summer of 2008. We also get lots that fail tests like the waterproofing compound; it’s still fine ammo for civilian use (and still more waterproof than normal civilian ammo).

So this is going to mess that deal up, which will ultimately end up costing the government more to buy ammo.

This is par for the course from the group of petulant children that make up the Obumbles administration.

I bet they get so much flack about this in the public comments that it just quietly goes away.

    That would be about a best-case scenario.

    freeinaz in reply to Gremlin1974. | February 17, 2015 at 3:04 am

    I wouldn’t count on that. The way these gun grabbers and progressives work they will spam the comments with thousands of anti-gun/ammo posts which the BATF will be in on. This way the BATF can show how many so-called people are for a ban on this type of ammo and more. You can bet on one thing coming from this administration; they will lie, cheat, and bend/break the law to reach their end. I encourage everyone to send them a comment on their attempt to ban 5.56/ .223 ammo, because if they succeed with this they will begin to ban more.

Interesting discussion. I agree that we cannot allow the opposition to define the argument, but we must recognize that the opposition operates under Rules for Radicals, one of which is to make the enemy adhere to their own rules. Here’s from Webster:

entirely
entirely

adverb en·tire·ly
Definition of ENTIRELY
1
: to the full or entire extent : completely
2
: to the exclusion of others : solely

Dear Mr. Branca, Thank you.

I find I check in with Mr. Jacobson most mornings, and I find your contributions very useful.

from above “Bottom line, the mere fact that we’re parsing such ambiguous language in an effort to defend our Constitutionally protected rights means that we’ve missed the real battle.

There simply shouldn’t BE such language in play.”

I find I have significant anxiety going to bed at night…
I am no longer confident I will wake up innocent the next morning.

Sorry, a little slow today. The EPA bans all LEAD ammunition, and the ATF bans all NON-LEAD ammunition. I think I understand now.

JimMtnViewCaUSA | February 17, 2015 at 11:31 am

It will be instructive to learn if there any Repubs willing to stand up for American citizens, or if we need a new political party to handle that task.

Font Resize
Contrast Mode
Send this to a friend