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
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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.
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