Threats of an Ammo Ban: What You Need to Know

ammo

If you are a firearms enthusiast and you’ve been online in the month of March, you have probably seen a lot of buzz about a proposed ammo ban from the ATF and everyone’s reactions to it. It’s been a confusing ride for a lot of gun owners. To help you make sense of what the past couple months have held, here’s a timeline that will give you a detailed breakdown of what happened, from start to (hopefully) finish.

The Gun Control Act of 1968 imposed a wide variety of regulation on ammunition manufacturers, dealers, and purchasers. This law, however, leaves the definition of armor piercing ammunition up to the Law Enforcement Officers Protection Act of 1968 (LEOPA).

Had LEOPA been passed in its original form, ammunition that was designed for use in handguns but capable of penetrating body armor would have met the definition of armor piercing, but ammunition designed to be fired for rifles would not. However, these standards didn’t make it into the final bills.

The final resulting definitions of armor piercing ammunition (as listed in U.S.C. 931(a)(17)(B)) refer to the composition of the ammunition, whether or not it could be used in or was designed for a handgun, as well as some details about eh weight and the jacket. This definition, unchanged since LEOPA was passed in 1986, allows exemption to be made if the Attorney General determines that ammunition that falls within the definition as stated is “primarily intended to be used for sporting purposes.”

The sporting purposes exemption is where the conversation becomes relevant to what is currently happening. The ATF exempted 5.56 (.223) SS109 and M855 “green tip” ammunition in 1986 following an exemption request.

In 2012, with the popularity of the .223 pistol on the rise, the ATF held meetings with representatives from the firearms industry, the ammunition industry, law enforcement agencies, and “non-governmental organizations” focusing on whether or not this specific exemption was still applicable under the definition of “sporting purposes.”

February 14, 2015

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) released a document titled “ATF FRAMEWORK FOR DETERMINING WHETHER CERTAIN PROJECTILES ARE ‘PRIMARILY INDED FOR SPORTING PURPOSES’ WITHIN THE MEANING OF 18 U.S.C. 921(a)(17)(C)” that specifically addresses the 1986 exemption and the definition of “sporting purposes” as they pertain the exemption:

This document covers a lot of ground, discussing the 2012 meetings and concerns of both firearms industry professionals and law enforcement representatives and analyzing some of the language in LEOPA to determine whether or not 5.56 (.223) SS109 and M855 “green tip” ammunition should still fall under this exemption.

One of the more important arguments, based on our analysis of the text, differentiates between single shot handguns and revolvers or semi-automatics. It focuses on the ability to reload quickly and how easy it is to use the same caliber in multiple firearms. The document goes on to state that “it is not possible to conclude that revolvers and semi-automatic handguns as a class are ‘primarily intended’ for use in sporting purposes.” Using this argument, the framework goes on to conclude that because revolvers and semi-automatic handguns are not primarily used for sporting purposes, the ammunition for them cannot be either.

Ultimately, the ATF argues that because “5.56mm projectiles loaded into the SS109 and M855 cartridges are commonly used in both ‘AR-type’ rifles and ‘AR-type’ handguns” which were not commercially available when the exemption was made in 1986 the exemption for “green tip” SS109 and M855 cartridges should be withdrawn.

The ATF gives one week for comments, stating that they will “carefully consider” all comments received before March 16, 2015.

The NRA-ILA reacted immediately, putting a post on their website explaining the proposal and providing directions on how to contact the ATF to comment.

Read the full document online at ATF.gov.

February 18, 2015

The NRA-ILA released an explanation of the framework and contact information for the ATF, further encouraging law-abiding gun owners to comment:

In the explanation, the NRA calls out some specific problems it saw in the ATF’s framework:

The NRA is continuing its examination of the framework and its implications and will be submitting detailed comments in opposition to it. As before, gun owners and other affected members of the public must act now to ensure BATFE does not get away with this. While emotions are running high in response to this latest attempt by BATFE to undercut the Second Amendment by administrative fiat, submissions should refrain from inappropriate language and calmly explain the framework’s errors. The following are just a few suggested points that can be addressed in comments to the proposed framework. This list is merely a sampling of the many points that could be raised against it.

M855 ammunition should not even be categorized as “armor piercing” in the first place, given that lead is the primary material beneath its copper jacket.

BATFE’s framework does not clarify the “sporting purposes” exemption; it simply interprets it into irrelevance.

The framework overturns nearly 30 years of settled law and the good faith expectations of gun owners and industry members.

The framework is totally at odds with the intent of the law to ensure that restrictions on armor piercing handgun ammunition do not unduly restrict common rifle ammunition, most of which is capable of penetrating police body armor when used in a rifle as intended.

BATFE incorrectly insists that it is required to establish an “objective” standard based on handgun design, yet it fails even to do that with the very broad “discretion” it retains to deny the exemption to projectiles that meet its “objective” test.

The framework will suppress the development of non-lead rifle projectiles that offer increased performance for hunters, decreased lead exposure, and solutions for hunters in states that restrict the use of lead in hunting.

The framework will likewise deter handgun development, as new designs could trigger bans.

Coupled with increasing attempts to ban lead projectiles, the framework could drastically reduce the availability of lawful ammunition for sporting and other legitimate purposes.

M855 ammunition in AR pistols is not a common threat faced by law enforcement officers.

Read the original statement online at NRA-ILA.org.

February 20, 2015

The NSSF released a statement encouraging gun owners, target shooters, and industry employees to contact their member of Congress and the ATF to oppose the ban:

The NSSF’s statement calls out the popularity of “green tip” ammunition’s use in target shooting, arguing that the round is both primarily intended and regularly used for “sporting purposes.” They leverage the same argument the industry groups used in the original 2012 meetings that the ATF hosted, which focuses on manufacturer’s intended purpose of the ammunition.

The NSSF also addresses language used by the ATF in the framework which refers to cirminals as a “consumer group” as if the industry purposefully sells firearm and ammunition, saying that the language is “misleading and echoes the shopworn charges of the gun control lobby.”

The statement also calls out a ban in California, being phased in now, which prevents hunters from using traditional ammunition. The NSSF uses this law to show how a ban on “green tip” ammunition could have a detrimental effect on hunting.

Read the full statement at NSSFblog.com.

February 25, 2015

The NRA-ILA put out a call for law-abiding gun owners to urge their U.S. Representatives to sign a Congressional Letter to the ATF regarding the proposed ammunition ban:

With the help of U.S. Representative Bob Goodlatte (R-Va.), Chairman of the House Judiciary Committee, the NRA-ILA drafted a letter to ATF director B. Todd Jones “expressing lawmakers’ opposition to the proposed framework.”

To give you an idea of what was in the letter, here’s an excerpt:

The effects of these restrictive interpretations are untenable. For example, since 1986 ATF has considered the M855 5.56 x 45mm cartridge to be “exempt” under the sporting purposes test (although its core contains a substantial amount of lead, raising questions about its classification as “armor piercing” in the first place). ATF has now rescinded that exemption because repeating handguns that fire the M855 round are commercially available. Yet this round is amongst the most commonly used in the most popular rifle design in America, the AR-15. 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 LEOPA to ban one of the preeminent rifle cartridges in use by Americans for legitimate purposes is preposterous.

It ends with:

In order for Congress to more fully understand the rationale behind the “Framework” please respond to the following questions by March 13, 2015:

1) How does ATF determine what constitutes the “core” of a projectile that has more than one discrete component or section beneath an outer jacket and upon what provision of law or other principle is that determination based?

2) Why did the ATF not publish the proposed “Framework” in the Federal Register as required by the APA?

3) Under the “Framework,” what other rounds is the ATF considering regulating as armor piercing ammunition?

Thank you for your prompt attention to this request. If you have any questions, please contact Jason Cervenak, Senior Counsel, of the House Judiciary Committee at 202-225-3951.

The same statement from the NRA-ILA stated that the NRA would be commenting in further detail to the BATFE.

Read the original statement online at NRA-ILA.org.

March 6, 2015

Katie Pavlich of Townhall.com reported that “green tip” ammunition was already banned in the ATF regulation guide:

The article compares the 2005 ATF Regulation guide, which specifically called out AR-15 “green tip” ammunition, to the 2014 ATF Regulation Guide that was released in January 2015 (one month before the ATF released the framework document). The 2014 ATF Regulation Guide had removed “green tip” from the exemptions.

Read the full article online at Townhall.com.

March 7, 2015

ATF released a “NOTICE OF PUBLISHING ERROR”:

This is where a lot of people started to get confused. The notice of error released by the ATF does not address the framework, but rather addresses the error in the 2014 ATF Regulation Guide:

Media reports have noted that the 2014 ATF Regulation Guide published online does not contain a listing of the exemptions for armor piercing ammunition, and conclude that the absence of this listing indicates these exemptions have been rescinded. This is not the case.

Please be advised that ATF has not rescinded any armor piercing ammunition exemption, and the fact they are not listed in the 2014 online edition of the regulations was an error which has no legal impact on the validity of the exemptions. The existing exemptions for armor piercing ammunition, which apply to 5.56 mm (.223) SS 109 and M855 projectiles (identified by a green coating on the projectile tip), and the U.S .30-06 M2AP projectile (identified by a black coating on the projectile tip), remain in effect.

Read the full statement at ATF.gov.

March 10, 2015

The ATF released a “NOTICE TO THOSE COMMENTING ON THE ARMOR PIERCING AMMUNITION EXEMPTION FRAMEWORK”:

Thank you for your interest in ATF’s proposed framework for determining whether certain projectiles are “primarily intended for sporting purposes” within the meaning of 18 U.S.C. 921(a)(17)(C). The informal comment period will close on Monday, March 16, 2015. ATF has already received more than 80,000 comments, which will be made publicly available as soon as practicable.

Although ATF endeavored to create a proposal that reflected a good faith interpretation of the law and balanced the interests of law enforcement, industry, and sportsmen, the vast majority of the comments received to date are critical of the framework, and include issues that deserve further study. Accordingly, ATF will not at this time seek to issue a final framework. After the close of the comment period, ATF will process the comments received, further evaluate the issues raised therein, and provide additional open and transparent process (for example, through additional proposals and opportunities for comment) before proceeding with any framework.

The original is available online at ATF.gov.

March 13, 2015

The NRA-ILA released an official statement on the proposed framework in the form of a letter to the ATF from NRA-ILA Executive Director Chris Cox:

The letter, which is nearly as long as the framework document itself, addresses in detail every aspect of the document, as well as some legal issues that would prevent the ban from going through.

The letter argues that the framework is void because it was not properly put into effect under the Administrative Procedures Act (APA). The APA, enacted in 1946, applies to both independent agencies and federal executive departments, and dictates how they establish regulations.

The letter itself is nicely summed up in its conclusion:

The National Rifle Association appreciates the legitimate concerns that arise from the potential criminal misuse of specially-designed “armor piercing” handgun ammunition. A reasonable interpretation of LEOPA, including the one ATF took in the early days of the law, can be responsive to this concern without trenching on the Second Amendment rights of lawabiding Americans. Unfortunately, ATF’s proposed Framework is not only unreasonable, it ignores the APA, effectively rewrites LEOPA, and extends the law far beyond its congressional intent. The Framework therefore must be withdrawn. Any further attempts to enact a rule of this sort should be undertaken in compliance with the APA and with honest recognition of LEOPA’s limited scope and the importance those limitation play in protecting the rights of law-abiding Americans. Should that happen, the NRA will remain available to assist.

Read the full letter online at NRA-ILA.org.

Where do we stand now? There is a chance that the ATF will reintroduce an altered framework, but between the actions of the NRA-ILA, concerned gun owners, and 239 members of the U.S. House of Representatives who signed Rep. Goodlatte’s letter we will probably see some major alterations to the original document, if we see it again at all.

Read the NRA-ILA’s celebratory response to the ATF statement at NRA-ILA.org.

Originally published in the April 2015 issue of GunUp the Magazine.

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