Regular readers know that I try to keep abreast of changes in gun laws, both because guns are involved in a significant number of serious crimes and because the gun laws themselves are often criminal provisions. There’s been considerable recent media coverage of a proposal by the Bureau of Alcohol, Tobacco, Firearms, and Explosives to change the legal status of a specific type of ammunition. Depending on who you talk to, the move is either a technical reclassification that will improve officer safety at no significant cost to law-abiding gun owners, or President Obama’s first step towards gun control by executive action. As usual for a School of Government piece, this post doesn’t take a side, but does provide some facts.
General background. Federal law generally prohibits the importation and manufacture of “armor piercing ammunition,” 18 U.S.C. § 922(a)(7)-(8), and imposes other limits on transactions involving such ammunition, 18 U.S.C. § 922(b)(5) (requiring dealers to keep records of certain permitted sales of covered ammunition).
A federal statute defines “armor piercing ammunition” as:
- A projectile or projectile core [basically, a bullet] which “may be used in a handgun” and which is made of certain listed hard metals, including steel, or
- A heavily jacketed projectile that is larger than .22 caliber and is intended for use in a handgun [this prong of the definition isn’t important for present purposes]
There are some exceptions to the definition, including one for any “projectile which the Attorney General finds is primarily intended to be used for sporting purposes.” 18 U.S.C. § 921(a)(17)(B)- (C). The Attorney General has delegated to BATFE the responsibility for determining which projectiles are eligible for the exception.
Background regarding “green tip” ammunition. The AR-15 is a popular style of rifle. It is related to the M-16 rifle used by our armed forces, but is semiautomatic rather than being capable of fully automatic fire.
Many AR-15 style rifles use 5.56 mm ammunition. One popular type of ammunition in that caliber is so-called “green tip” ammunition, sometimes known by the number M855. The bullet in M855 ammunition is made partly of steel and partly of lead. There is some disagreement about whether the bullet can be fairly characterized as having a steel core or is best described as having a lead core with a steel tip. Although initially developed for military applications, the ammunition is apparently popular with civilians for target shooting and other purposes.
Since 1986, BATFE has exempted M855 ammunition from classification as “armor piercing ammunition.” The reasoning seems to have been some combination of (1) the fact 5.56 mm ammunition is overwhelmingly used in rifles, not handguns, and (2) the fact that such ammunition is mostly used for target shooting and other “sporting purposes.”
BATFE’s proposed regulation. Last month, BATFE issued this white paper, explaining that it planned to withdraw the exemption for M855 ammunition and requesting public comment by March 16. It noted that a number of AR-15 “handguns” are now on the market. (These guns are typically quite large and look more like shortened rifles than like traditional pistols, but technically are classified as handguns.) Thus, M855 ammunition “may be used in a handgun” and, if it is correctly viewed as having a steel core, meets the definition of “armor piercing ammunition.”
As to the sporting purposes exemption, BATFE stated that it planned to interpret that phrase more narrowly than in the past, based on a desire to prioritize officer safety. Essentially, it stated that ammunition would fall within the exemption only when “the only handgun that is readily available in the ordinary channels of commercial trade [that uses such ammunition] is a single shot handgun,” because single shot handguns are used almost exclusively for sporting purposes while other handguns are adaptable to a variety of uses, including sporting, non-sporting, and criminal purposes. Because M855 ammunition may be used in handguns that are not single-shot handguns, BATFE plans to withdraw it from eligibility for the sporting purposes exemption.
Implications. There are many other 5.56 mm cartridges available that don’t have any steel in the bullet and so aren’t affected by BATFE’s announcement. So the direct effect will not be life-changing for gun owners. Of course, the benefit to officer safety is also not likely to be major, since (1) AR-15 style weapons are rarely used in crimes, and (2) any type of ammunition fired from an AR-15 rifle, “armor piercing” or not, will penetrate officers’ body armor at typical street ranges.
The real question is whether this is the camel’s nose under the tent, a precursor to future regulatory moves that limit gun rights. Some gun rights advocates envision a move to restrict more and more non-lead ammunition as “armor piercing” while restricting lead ammunition as environmentally dangerous.
Assuming that the public comments submitted to BATFE don’t change the agency’s mind, and that it goes forward with the proposed reclassification, I would expect litigation about whether the agency is fairly interpreting the sporting purposes exemption. If you have thoughts on that issue, or any other presented above, please post a comment or let me know directly.