BATFE’s Proposed Bullet Ban

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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.

7 comments on “BATFE’s Proposed Bullet Ban

  1. Clearly the camel nose under the fence as you put it. The law enforcement officers in the streets actually at risk didn’t ask for this. Administrative figures far removed from the streets and those officers certainly don’t speak for them nor have they been authorized by these officers to speak on their behalf either. The officers however HAVE authorized the PBA and the FOP to speak on their behalf though;

    SSPBA GUN STANCE

    “As president of Southern States PBA, a professional law enforcement association with over 30,000 members from federal, state, county and municipal agencies, I would like to express our support for the 2nd Amendment of the Constitution and for law abiding citizens to purchase and own firearms. From hunting to shooting sports, firearms are a part of the American culture that are passed from generation to generation. Rank and file law enforcement officers realize that gun ownership from law abiding citizens poses no threat to the law enforcement community or to the public. New legislation aimed at reducing or restricting law abiding citizens from purchasing or owning firearms will do nothing to reduce violent crime nor will it stop criminals or those who want to commit evil acts from obtaining weapons. We, as law enforcement officers, take an oath of office to enforce the laws in our communities and support and defend the Constitution of the United States. We will continue to do so. It is our hope that our leaders in Washington will look at reasonable measures to help keep guns out of the hands of the criminals and punish those more severely who are violating those laws.” ~ Chris Skinner, Southern States Police Benevolent Association.

    Such an unconstitutional action will likely fail at the point of “enforcement” as law enforcement took an oath to uphold the constitution…not ignore it. I have a feeling that this will not survive the courts, if it even gets that far.

    • Do you think the police should decide what the law is or which parts should be enforced? There are various words for that idea, none are democracy.

      • [DefenderPerson]Do you think the police should decide what the law is or which parts should be enforced? There are various words for that idea, none are democracy.

        JW Schrecker: ABSOLUTELY! And not only that…we are REQUIRED to do so by our oath of office. Note that law enforcement officers DO NOT take an oath to heed the orders of ANY person;

        Oath of Office: “I, [NAME], do solemnly swear (or affirm) that I will support and maintain the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith, and that I will faithfully discharge the duties of my office as a law enforcement officer, so help me God.”

        As you can see the law enforcement officers swear to answer to the U.S. Constitution and the “Constitution and laws of North Carolina ,strong.>not inconsistent therewith“.

        This is intentional. It is designed to thwart the ability of any person, or click of persons, from corrupting our police forces.

        All law enforcement officers in the state of North Carolina have sworn to IGNORE ANY unethically legislated laws that are in conflict with the U.S. Constitution. And we are quite capable of making that determination on our own. We do take training in Constitutional Law that is on par with that of any attorney. Such training being mandated to be reviewed each and every year. So you’ve no argument there.

        Isn’t it amazing just how smart and far thinking into the future that our forefathers were? Why, it’s almost as if they were smarter back then than our attorneys are now.

        And in case you failed to realize it; this is not a democracy…it’s a REPUBLIC.

        The United States a republic, not a democracy. Accurately defined, a democracy is a form of government in which the people decide policy matters directly–through town hall meetings or by voting on ballot initiatives and referendums. A republic, on the other hand, is a system in which the people choose representatives who, in turn, make policy decisions on their behalf. The Framers of the Constitution were altogether fearful of pure democracy. Everything they read and studied taught them that pure democracies “have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths” (Federalist No. 10).

        This is what keeps liberals in check and thus why they continuously FAIL at their Democrat agenda…thankfully.

  2. A friend of mine posed this argument and sent this to the BATFE:

    John Vreeland

    To Whom It May Concern,

    I have been looking into the latest news regarding the BATFE and their latest “Framework for determining whether certain projectiles are ‘Primarily intended for sporting purposes'” (identified from here on as just “framework”) and I’m glad I took the time to read a little bit of the existing laws in place. I understand that LEOPA has been established in regards for Law Enforcement Officer safety. I have a number of friends that are LEOs in the local and county offices and I do wish for their safety in the event they have an engagement. The reason I am concerned with the framework, the specilations of what it could change, and the errors that lie within, is that by definition, it does nothing but put paper on someone’s desk.

    Let me explain. The framework is looking to include the SS109 and M855 projectiles in the classification of “Armor Piercing Ammunition,” but there is a catch. The definition as stated in 18 U.S.C. 921(a)(17)(B)(i) is as follows:

    17)(A) The term “ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm.

    (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.

    The definition defines “Armor Piercing Ammunition” as ammuntion that “… may be used in a handgun…”. As far as I am aware, there are no “AR-15,” “AR” styled, or other handguns capable of firing the ammuntion in question. Per 18 U.S.C 921(a)(29), a “handgun” is defined as follows:

    (29) The term “handgun” means—

    (A) a firearm which has a short stock and is designed to be held and fired by the use of a single hand; and

    (B) any combination of parts from which a firearm described in subparagraph (A) can be assembled.

    Since a handgun is clearly defined as a firearm “…designed to be held and fired by the use of a single hand,” the “AR” style pistols apply. Secondly in regards to 18 U.S.C. 921(a)(17)(B)(ii), it still defines ammunition that is “…designed and intended for use in a handgun…”. When one looks at the AR pistols, they all have a handguard or rail system that can be used as a handguard. Due to the reduced weight and the removal of the butt-stock, it still remains a firearm that is designed to be fired with 2 hands hence the forward handgard. While added items such as the stabilizing brace allow it to be more accurately fired from a single hand, they are additions to the AR pistols and is no different than adding a butt-stock to a handgun, i.e. Glock 17, and turn it into something different that the manufacture’s indended design. The BATFE identifies this in an open letter referencing the addition of a vertical grip to a handgun, while also defining “handgun” under Federal law. (See: https://www.atf.gov/press/releases/2006/04/041006-openletter-nfa-adding-vertical-fore-grip.html)

    I am curious mostly by the ATF’s desire to uphold the SS109 and M855 rounds in the LEOPA, as the material they are referencing (the United States Code) makes a rather clear definition of what a handgun is. The recoil of the 5.56mm/.223 caliber cartridges are rather substantial and even semi-automatic rapid fire of these from a single hand would result in highly inaccurate round placement, as the rifle cartridges that they are are intended for a more steady firing platform and shooter.

    Thank you for your time,

    John Vreeland

  3. This is what you get when you combine a poorly written piece of politically motivated legislation with a government agency that has a history of poor oversight and a reputation of playing fast and loose in its interpretations and enforcement of the law.

    This law has been on the books for decades, it’s just now being acted on out of a political motive to cause disruption. It has absolutely nothing to do with the safety of the public or LEO’s in particular.

  4. To be honest, I have been continually surprised that the pistol version of the “AR style” rifles were ever classified as “handguns.” They are interesting firearms, but they ARE short rifles. They fire a rifle caliber round from the rifle receiver (upper and lower). Besides, 5.56mm IS .22 caliber (.2188″). As have been mentioned, the recoil of these rounds would be substantial for one-handed firing, and the firearms are substantially heavier, as well as significantly imbalanced, for one-handed hold with any consistent accuracy.

    Besides having those “pistols” in the 5.56x.45mm/.223″ caliber, there are the so-called AK47 pistols firing the 7.62x39mm cartridges.

    One of the rationalizations for banning this particular ammunition is to protect the police. A protection the police say they don’t need because these rounds, or the firearms, a problem for them. That makes the BATFE’s argument a lie. Surprise! The White House has claimed that “everyone” wants these rounds banned. I don’t. I am someone who is a part of everyone. This is no more a case of the police making policy, than the White House making policy.

  5. ATF has decided to back off of this issue. Apparently, the people stood up and the ATF listened.

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