Gun Owners of America Gun Owners of America Comments on "Report and Recommendation of the ATF Working Group on the Importability of Certain Semiautomatic Rifles" Comments on "Background" Discussion: The "Background" portion of the Report is confined to a discussion of the legislative/regulatory history of the BATF's position on importation of civilian firearms. This legislative discussion is seriously flawed in that it discusses -only- the enactment of the 1968 Gun Control Act. While GCA 68 gave essential form to 18 USC 925, the language of that section as it exists today is also the product of two other enactments - the Trade and Tariff Act of 1984, 98 Stat. 2948, 2991-92, which added subsection (e), and the Firearm Owners Protection Act, 100 Stat. 449, which massively rewrote subsection (e), to make approval of importation mandatory rather than discretionary and to narrow the bases upon which BATF could deny permission. (The latter restrictions make it all the stranger that the Report should stress the 1968 language claiming an intent to give the Secretary a broad discretion, while ignoring the fact that the language which gave that discretion was cut from the statute three years ago, for precisely the reason that it was too broad.) No discussion of the history of this section is complete without a detailed analysis of the history of these two later Acts which modified the section of GCA 68. The Report's total silence with regard to both of these later enactments is sufficient to call into question the legal analysis which is its justification. We will below demonstrate several areas where that ignored recent legal history demonstrates the illegality of this proposal. The citation of the 1968 legislative history is also inadequate. The Report is content to place its selected excerpts from Senate debate into a footnote, while leaving the text with the flat assertion that the "mere fact" that an arm "may be used in a sporting event does not make it importable as a sporting firearm." The reason for placing the floor debates in a footnote becomes obvious on a close reading of footnote 2. Senator Dodd manages to thoroughly muddle any explanation of the critical "sporting purpose" language, conceding at one point that shooting at the National Matches at Camp Perry would constitute a "sporting purpose," then reversing himself when told that military rifles are used in those matches, then equivocating when told that military rifles may be used in Olympic matches as well, and finally concluding that only "genuine sporting weapons" would be admitted and "I think the Senator and I know what a genuine sporting gun is." The debate cited in footnote 2 seems to demonstrate a position directly opposed to the interpretation given in the body of this report. Senator Dodd is at best confused. The citation does nothing to clarify the congressional intent underlying this section. Any meaning that the Report seeks to read into this muddle - that a "military firearm" can never be a "sporting firearm" - is undercut by its concession that the BATF's Firearms Evaluation Panel, meeting only months after the law was passed, -did- approve importation of the military-style Baretta BM-59. Presumably this is a claim that BATF has, for 21 years, been applying the statute incorrectly until this year. It is not clear how BATF expects others to comply with its agency decisions when it can drastically reverse one of its oldest GCA 68 interpretations. Let us not forget that the recommendations of this Report mark a reversal of twenty years of BATF interpretation of 18 U.S.C. 925. Agencies are, of course, fond of quoting judicial rulings that give deference to long-standing agency interpretations. Yet in this case BATF tosses aside its own long standing ruling with a simple finding that it was not "thorough." [p. 5] BATF, which expects the public and courts to defer to its rulings, ought to do the same, particularly since the ruling has been in place through two modifications and reenactments of portions of section 925. In the 1986 modification, the applicable Senate report stated that while the law would modify 925(e)'s sporting purposes test, "It is anticipated that in the vast majority of cases this will not result in any change in current practices." [S. Rep. 98-583, at p. 27 (August 8, 1984)] The reenactment of a section of law carries with it an implicit legislative endorsement of existing interpretations - even without the endorsing language found in this Senate report. It is clear that Congress approved the way in which the sporting purposes test was being administered in 1986 and, in fact, had so been administering since the Gun Control Act was enacted eighteen years before. For BATF to now "discover" a supposedly long-lost meaning is a repudiation of the later Congressional understanding and intent. COMMENTS ON "ANALYSIS" "A. Defining the type of weapon (sic) under review." The Report's reasoning is flawed from the outset. It proceeds along the following lines: (1) "The working group first attempted to determine whether the semiautomatic rifles suspended from importation fall within a type of firearm." (2) Since no "type" fits, the Report invents a new type - the "semiautomatic assault rifle," which admittedly is not an "assault rifle." (3) The Report finds that "the modern military assault rifle contains a number of features and characteristics designed for military applications which distinguish it from traditional sporting arms." (4) "[U]sing these criteria, we determined that, on balance, all of the firearms in the original suspension list are properly included in the definition...." The flaw in the reasoning here is simple tautology. To justify the import ban of certain guns which took place before the Report was issued, the Report takes those same guns, determines their common attributes, and rules that guns with those attributes are not importable. The guns may not be imported because they have certain attributes; and the attributes are chosen because they describe guns which may not be imported. A close look at these attributes suggests that they are flawed in conception as well. Three general flaws are apparent. First, the supposed attributes are not common denominators of the definition being attempted. For example, the Report recommends the banning of certain guns which lack many of the attributes. The supplemental form on the M14S concedes, for example, that it has no folding stock, no pistol grip, no bipod, no grenade launcher capability, no night sights, and that the advertisements for it stress it is accurate, precision-crafted, and "particularly well suited for sporting purposes," yet the Report would ban its importation. The Report attempts to explain this by saying that these criteria "must be viewed in total" and many sporting arms may meet one or more of them. This is tantamount to a confession that the supposed criteria are not an objective test, but rather a justification for arbitrary fiats: this gun meeting four criteria is importable, while another gun meeting two is not. The entire idea of there being an objective "type" of gun at issue is thoroughly undermined. Second, the criteria ignore the real test imposed by Congress, which is suitability for sporting use. The criteria do not define a type of gun that has no sporting use (even accepting the Report's asserted power to define what a "sport" is, a power Congress did not contemplate giving BATF). They proposed to define instead a gun that -has- a military application, or at least -would have- one if its design were changed to full automatic. But the Report nowhere proves its assumption that a firearm that has design features with possible military use can thus have no sporting uses. Does BATF seriously intend to claim that once a firearm is outfitted with a flash suppressor or separate pistol grips it CANNOT BE USED FOR A SPORTING PURPOSE? If this is so, then the presence of these items is irrelevant to the determination required by law. That Congress did not see a problem in recognizing that a military arm might also have sporting uses is proven by section 233 of the Trade and Tariff Act of 1984, 98 Stat. 2948, 2991, which created the present 925(e). The purpose of this new subsection was to permit the importation of military-surplus firearms. In 925(e)(2), Congress permitted the importation of military handguns if they were "generally recognized as particularly suitable for or readily adaptable to sporting purposes." Congress thus recognized that there was no inconsistency between a firearm being of a military type, and its being particularly suited for or readily adapted to a sporting purpose. Third, the Report ignores the fact that the statutory language requires BATF to approve any firearm "particularly suitable for or readily adapted to" sporting purposes. Nowhere in the Report is there any claim that installing a bipod, or night sights, on a rifle, prevents it from being "readily adapted" to sporting use. Historically, many hunting arms (from converted muskets to sporterized M-1 Garands) have been produced by adapting military arms. At a minimum, BATF deferral to this law would require discarding any criteria based upon removable parts - such as magazines, stocks, bayonets, flash suppressors, bipods, grenade launchers, and night sights - as well as those dealing with original design rather than subsequent adaptation - such as origin in a selective-fire design. The criteria themselves are also worthless, insofar as defining a "type" of firearm with no "sporting purpose" is concerned. We will briefly discuss each in turn: (a) DETACHABLE MAGAZINE. Many traditional hunting arms - particularly the Remington slide- and autoloaders, and the Browning autoloaders - use a detachable magazine. Many military arms (i.e., the M-1 Garand, the Italian Mannlicher-Carcano, the Russian Tokarev) do not. To the extent the Report seeks to rely on large magazine [capacity, -tr.] as a criterion, it cannot meet the test of "readily adapted to" sporting use, since in two seconds a magazine switch to a smaller capacity can change the rifle to one BATF accepts as adapted to sporting use. Moreover, firearms with detachable box magazines are used at the National Matches and other formal shooting competitions - clearly sporting purposes, as well as for sport plinking and self defense. (b) FOLDING STOCKS. How a mere folding stock could disable a firearm from sporting use is never explained in the Report. In any event, if a simple fitting of a different stock would change the arm into one admittedly suitable for sport, then it is obviously one "readily converted" to sporting use. (c) PISTOL GRIP. Almost every sporting rifle has a "pistol grip." Thus the Report seems to focus on a "well-defined" pistol grip, without ever clearly stating what this is, or how it prevents a rifle from being used in a sporting manner. (d) ABILITY TO ACCEPT BAYONET. This is an additional function, perhaps unnecessary for some sporting uses, but certainly a bayonet lug does not -prevent- a firearm from having a sporting use. Many formal target matches are shot with service rifles having such a lug. Many hunters hunt with "adapted" military arms which once had such a lug. (e) FLASH SUPPRESSOR. Again, this is not an item that prevents a firearm from being used in a sporting manner. Target shooters, hunters and plinkers are not likely to go about complaining about being deprived of a muzzle flash. Second, since it is easily removable in most cases, it can hardly bar a firearm from being "readily converted" to sporting use. (f) BIPOD. The Report apparently includes among firearms described as having "bipods" those which merely have a "mounting point" on which a bipod may be attached. It also concedes that sporting firearms also are sometimes outfitted with bipods, although these bipods usually attach to the swing swivel mount or simply clamp on. The arbitrary nature of the distinction between having a bipod clamp onto a lug, or onto a swivel mount or the barrel, is obvious and so is the arbitrary nature of this criterion. Nothing in such a mount precludes use for sporting purposes, or prevents adaptation. (g) GRENADE LAUNCHER. This formidable-sounding appliance, when analyzed, turns out to be no more than a flash suppressor "designed to function" as a grenade launcher - viz., having the same diameter as certain rifle grenades. There is no reason why the diameter of the flash hider should determine whether a firearm has a sporting purpose and the hider is, as noted above, readily removable. (h) NIGHT SIGHTS. These amount to little more than luminous areas on sights, and do not interfere with sporting use, however defined. (i) WHETHER THE ARM IS A SEMIAUTOMATIC VERSION OF A MACHINE-GUN. Since a semiautomatic is by definition not a "machinegun," we question whether this test has any meaning. It makes as much sense as speaking of "an automotive version of a horse" or "a red version of blue." Moreover, many of the banned firearms, while outwardly resembling a Title II device, have been subjected to many internal modifications at the instance [sic; insistence? -tr.] of BATF. These may involve shifting from open-bolt fire to closed-bolt fire (e.g., the Uzi submachinegun versus the Uzi carbine). The sole purpose of the mandated changes is to make it difficult to convert the semiauto arm into a fully automatic one and, along the way, to make the semiauto arm more suited to sporting use by increasing its accuracy and stability. Thus a "version" of a fully automatic arm may bear little resemblence to the original arm. (BATF acknowledges this when it approves for importation the .22 rimfire rifles which outwardly resemble an assault rifle, on the basis that they have a .22 rimfire action inside). Moreover, it is impossible to determine what firearm is a "version" of another. The BM-59, as discussed above, is treated by the Report as a semiauto version of the full automatic M-14. Yet how is the agency to objectively determine whether another arm is a version of the M-14, a version of the BM-59 (itself not a machinegun) or a version of yet another semiautomatic which resembles the M-14 (which in turn, of course, resembles the semiautomatic M-1 Garand)? (j) CENTERFIRE CARTRIDGE OF 2.25" LENGTH OR LESS. This criterion most clearly illustrates the arbitrary nature of the Report's criteria. It may be true that most of the banned firearms chambered cartridges under this length. But that hardly proves that cartridges under this length - which include the .30-30, .25-20, .308, .35 Remington, and other hunting favorites - are no good for sporting purposes. A partial listing of hunting-type rounds falling into this category follows: Round Length ----- ------ .22 Hornet 1.403 inches .222 Remington 1.692 .223 Winchester 1.760 .222 Rem. Mag. 1.845 .225 Win. 1.930 .22-250 1.920 .220 Swift 2.210 .243 Win. 2.045 .244 Rem. 2.233 6 mm Rem. 2.233 .256 Win. 1.277 .250-3000 1.912 .257 Roberts 2.233 6.5 mm Swede 2.157 6.5 mm Rem. 2.470 .284 Win. 2.165 .30 Carbine 1.288 .30-30 2.040 .30 Rem. 2.040 .300 Savage 1.875 .308 Win. 2.010 .30-40 2.312 .303 British 2.210 7.65 mm Mauser 2.105 .32 Win. 2.050 8 mm Mauser 2.240 .35 Rem. 1.920 .358 Win. 2.015 .350 Rem. 2.165 .44 Mag. 1.285 .444 Marlin 2.225 Our estimate, in fact, is that over nine-tenths of all American civilian centerfire rounds have a case length less than the report's "military" 2.5 inches. The arbitrary nature of this test should be obvious. "Scope of sporting purpose." ---------------------------- Above we point out the Report's deficient use of statutory history, and how military and sporting purposes cannot be distinguished. Further, the test is whether an arm is "readily adapted" to a sporting use. This section of the Report falls prey to these shortcomings, and in addition tries to draw arbitrary distinctions between "sports" and "pastimes" [plinking is, in the view of the Report, "primarily a pastime and could not be considered a sport.... (p. 10)]. The Report then, without any basis in history or logic, distinguishes between, "recognized sport" and that which is unrecognized - presumably by BATF. The Report then lumps all "semiautomatic assault rifles" into one class - ignoring the facts, as shown, that the criteria themselves are useless and are in any event arbitrarily applied to any given gun. Marvel of marvels, it concludes that when the criteria (derived from the temporarily- banned guns) is applied to the temporarily-banned guns, most of them fit it. CONCLUSION The Report is based upon circular reasoning, specious categories, and arbitrary application. It serves no purpose except to rubber stamp a politically inspired, hasty "temporary" ban already imposed without notice or comment, and to overturn a 21-year old agency policy implicitly endorsed by Congress. It, paradoxically, comes on the heels of a Congressional initiative to -narrow- BATF import ban powers. The Report must be withdrawn. =============================================================================== Transcribed on 15 Nov 93 from an undated, non-copyrighted monograph provided by Gun Owners of America. Minor editing accomplished (e.g., addition of "" symbol; capitalization to represent underscored text, etc.). Reformatted for distribution in electronic file form. 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