Are We Missing the Bigger Picture in the M855 Ammo Ban?

The M855 ban debate has been most frustrating, as most media outlets, even those opposing the ban, are just regurgitating the same things over and over, intermittently injecting new technical or other inaccuracies. Most commentators appear to not have read the ATF framework document, and as a result fail to be on-point. I don’t believe this is a time for standard, blanket defense of the Second Amendment, generalized gun technology/terminal ballistics, nor political grandstanding by the Republican party. The ATF framework is extremely targeted and precise in its claims, and comments not on-point will certainly be set aside . . .

My concern with this issue generally is that the M855 ban is simply a red herring to focus the sporting community on the smallest corner of the “framework for determining” and its far-reaching implications. It may be the ATF’s strategic plan to resolve the furor by saying, “Okay, you can keep your M855, but the framework stands.” They would, of course, carry on issuing additional “determinations” based on it.

If that happens, we will have won the shootout for one house, but lost a major battle in the war. The key question of the framework is not whether M855 may be used in a handgun (I am writing all three of my Texas congressmen urging them to amend that language appropriately), but the mockery it makes of the “likely use” test. If that logic is allowed to stand as precedent, there is nothing that could not be banned similarly. It conceivably would open the door to a renewed “AWB”, or worse.

Attached is the comment letter I will be mailing to Ms. Brown tomorrow. Many of the points have already been made by the anti-infringement media, but usually not with precision or clarity. Others have been missed completely.

March 8, 2015

Denise Brown
Mailstop 6N-602
Office of Regulatory Affairs
Enforcement Programs and Services
Bureau of Alcohol, Tobacco, Firearms, and Explosives
99 New York Avenue, NE
Washington, DC 20226
ATTN: AP Ammo Comments

Dear Ms. Brown:

As a citizen of the United States, I am writing to express my concern regarding the recently published ATF FRAMEWORK FOR DETERMINING WHETHER CERTAIN PROJECTILES ARE “PRIMARILY INTENDED FOR SPORTING PURPOSES”.

The ATF’s intended framework hinges on selective and flawed interpretation of language in the Law Enforcement Officers Protection Act of 1986 (P.L. 99-408) (“LEOPA”). Specifically, the ATF has named the (X)M855 rifle ammunition in 5.56×45 caliber (M855) as slated for ban, on the grounds that there now exist firearms classified as handguns that are capable of firing it.

I urge the ATF to reverse its stated intent and implement a rational application of the “likely use” test of the sporting purposes exemption in 18 U.S.C. 921(a)(17)(C), as directed by the U.S. Supreme Court.

Text of 18 U.S.C. 921(a)(17)(B):

(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 ATF’s interpretation of current law, hinging entirely on the word “may”, effectively eliminates the exemption of ammunition “primarily intended to be used for sporting purposes” 18 U.S.C. 921(a)(17)(C).

The remainder of this letter deals with a series of talking points that are evident to me, a private citizen. I expect that organizations such as the National Rifle Association will or already have submitted comments regarding this issue. Some of my points may echo those provided by organized groups. However, I am not affiliated with the firearms industry in any capacity beyond that of a customer.

Reasons the ATF Framework is inappropriate and must not be established as policy:

• M855 does not meet the definition of “armor piercing ammunition” due to its substantially lead core.
• The ATF’s argument is arbitrary and capricious, and renders meaningless the “sporting purposes exemption” of 18 U.S.C. 921(a)(17)(C).
• The AR-style pistols targeted by the ATF are not a threat to law enforcement on the grounds cited by the ATF. These pistols are not functionally concealable due to their unusually large size, powerfully deterring their use as a “crime gun” (ATF term).
• M855 ammunition has widespread sporting use.
• The proposed ATF Framework threatens hunting and other sporting activities across the board.
• The ATF’s “logic” is dangerously broad in potential application – language in the Framework implies ATF would regard itself as compelled to follow through with any and all additional possible restrictions and infringements.

Explanation of reasons:

M855 does not meet the definition of “armor piercing ammunition” due to its substantially lead core.

18 U.S.C. 921(a)(17)(B) defines “armor piercing ammunition” as “a projectile or projectile core … which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of…steel…”. Below is a photograph of a cross-sectioned M855 projectile (note the green identifying paint visible on the nose of the jacket, leading to the common “green tip” reference). The core is constructed of two parts, the steel tip (right) and the primary lead portion (left). The lead portion is substantially larger in both volume and mass than the steel portion, and thus cannot be captured by the phrase “traces of other substances”.

ATF may argue that the lead and steel portions of the core are each a separate and distinct core in and of themselves, and that the steel portion therefore is captured by the word “entirely”. However, such an approach does not pass a basic test of extendibility: by that logic, any amount of the named materials, no matter how small, as a distinct substructure of a projectile core, would satisfy “constructed entirely”, which clearly runs counter both to reason and to the functional performance meant to be addressed by the LEOPA. The logical conclusion is that all regions of the projectile core, i.e., whatever is distinct from the jacket, must be considered as a whole. Consequently, M855 does not meet the definition of “armor piercing ammunition”, and no “sporting purposes exemption” is required in order for it to remain legal. Any attempt to enforce the ATF’s position that M855 will be banned by the withdrawal of the exemption would in fact be illegal, and can be expected to be challenged in court by citizens if it proceeds.

The ATF’s argument is arbitrary and capricious, and renders the “sporting purposes exemption” of 18 U.S.C. 921(a)(17)(C) effectively meaningless.

As stated above, the GCA requires that the Attorney General determine that the ammunition is “primarily intended” to be used for sporting purposes in order for ammunition that is otherwise defined as armor piercing to qualify for the exemption. (ATF Framework, p. 4)

From the perspective of law enforcement, however, the most relevant intent is that of a criminal who seeks to use ammunition capable of penetrating body armor when fired from a handgun. If ammunition containing the metal content enumerated in section 921(a)(17)(B)(i) can be used in a handgun—the type of firearm most frequently used by criminals whom police officers encounter on the streets—then, from the law enforcement perspective, the manufacturer’s intent that the ammunition be used for hunting or target shooting (in rifles or handguns) becomes irrelevant. The mere availability of handguns capable of using the ammunition made of the enumerated metals creates the potential for diversion to criminals who could use it in easily concealed firearms to defeat the protective vests worn by police officers – the exact officer safety concern targeted by LEOPA. (ATF Framework, p. 8) (bold emphasis added)

The ATF here argues that the mere possibility of misuse of an object outweighs any amount of design intent. This logic could as easily be applied to other common items of sporting equipment or garden tools, but is not, because to do so would be equally preposterous. The ATF rightly goes on to counter the above position in its discussion:

…the inclusion of the exemption shows Congress anticipated that certain types of ammunition properly classified as armor-piercing could be manufactured and distributed for sporting use without creating a significant risk to law enforcement through diversion to criminals. Consequently, for purposes of applying the exemption, the intent of one group of potential consumers (criminals) is no more determinative than the intent of manufacturers. (ATF Framework, p. 10) (bold emphasis added)

The ATF takes up the “likely use” test of the sporting purposes exemption, noting that the U.S. Supreme Court

…explained that an objective analysis of whether an item is “primarily intended” for a specified use must focus on the “likely use” of that item in the general community, not the subjective intent of any user or discrete group. (ATF Framework, p. 10)

Regardless, the ATF sets aside any reasonable application of that test and ultimately frames its argument in the following way:

Conversely, when a handgun’s objective design is not limited to primarily sporting purposes, such as handguns designed to be carried and concealed, it may be reasonably inferred that ammunition capable of use in such handguns is unlikely to be used primarily for sporting purposes. (ATF Framework, p. 11)

In essence, the ATF argues (in spite of its own multiple statements to the contrary within the same document) that the mere possibility of misuse, no matter how small or infrequent, implies that the object in question is therefore “unlikely to be used primarily for sporting purposes”. By this logic, in order for ammunition to be eligible for the “sporting purposes exemption” of 18 U.S.C. 921(a)(17)(C), it would have to be physically impossible for said ammunition to be used other than for sporting purposes. In the ATF’s own words, …the sporting purpose exemption would be superfluous, a result Congress also clearly did not intend. (ATF Framework, p. 10)

Further refuting the ATF’s assertion is the fact that in the weeks since the publication of the ATF Framework, not a single instance of a law enforcement officer being shot with an AR-style pistol has been publicized by the Justice Department, by the President, or in the media that I have searched. In fact, some experts have made exhaustive searches of all available databases and found no such examples, leading them to assert that it has never happened.

The ATF’s position that only ammunition that can only be chambered in single-shot handguns can qualify as “primarily used for sporting purposes” is akin to holding that freedom of the press applies only to newspapers, magazines and books.

The AR-style pistols targeted by the ATF are not a substantive threat to law enforcement on the grounds cited by the ATF.

The ATF’s justification for the Framework is law enforcement officer safety.

The framework is intended to uphold the requirements of the statute and its goal of protecting law enforcement while respecting the interests of sportsmen and the industry. (ATF Framework, p. 1)

…the goals of the statute: to protect law enforcement officers. (ATF Framework, p. 7)

The primary goal of the LEOPA provisions regarding armor piecing ammunition was the protection of police officers from death or injury as the result of the criminal use of handgun ammunition capable of penetrating protective vests (soft body armor). (ATF Framework, p. 2)

Key to this objective is the belief that the use of handguns by criminals is substantially favored by concealability, enumerated no less than five times throughout the ATF Framework:

…the officer safety concern LEOPA was designed to address—ammunition containing armor-defeating metals that may be fired from relatively small, concealable firearms. (ATF Framework, p. 7) (bold emphasis added)

…the potential for diversion to criminals who could use it in easily concealed firearms… (ATF Framework, p. 8) (bold emphasis added)

…handguns designed to be carried and concealed… (ATF Framework, p. 11) (bold emphasis added)

Except for pocket pistols and derringer-type handguns, which are easily concealable and lightweight, single shot handguns are generally large, heavy handguns used for traditional sporting purposes, such as target shooting and hunting. (ATF Framework, p. 13) (bold emphasis added)

Similarly, most handguns designed to be loaded with two-rounds of ammunition are small-frame, easily concealable, derringer-type firearms. (ATF Framework, p. 13) (bold emphasis added)

Anyone having a passing familiarity with AR-style pistols is aware that they are not functionally concealable due to their large size and substantial weight, powerfully deterring their use as a “crime gun” (ATF term). On the contrary, they are well-suited to traditional sporting purposes such as target shooting and hunting, as well as the Constitutionally-sanctioned protection of one’s person and family inside the home.

Below is a survey of the dimensions and weights of several popular traditional handguns as well as representative AR-style pistols and a comparable AR-style rifle on which they are based. Figures are from the manufacturers’ web sites.

(Height for the AR-style firearms was obtained by measurement of an exemplar. It includes 1.25 inches for the smallest practical aiming device, which is highly conservative – most aiming devices are significantly larger. The height does not include any extension of the magazine below the grip, as legal magazine size varies by jurisdiction.)

The images above are scaled accurately, within the precision of the software used and the resolution of the images.

As a law-abiding firearm owner, I have both experience and research on which to base the following representation: The “Pocket Size” (a) pistol is designed specifically for concealment. The Compact (b) is designed to be easily used by those with smaller hands, as well as concealed effectively. The Full Size (c) pistol is generally not favored as suitable for concealment due to its size and heft. In contrast, even the smallest AR pistol (d) is roughly three times the size and could not practically be concealed under any but the bulkiest winter clothing on the largest person, nor even be carried in a typical business brief case.

The large dimensions of the AR-style pistol are inherent to its operation – a redesign of the mechanism to use a different operating principle or smaller cartridge would be required to make it significantly smaller. Once a gym bag or instrument case is required to conceal something, does a slightly larger or smaller gym bag or instrument case really make any difference? Common sense says it does not, and it follows that the existence of AR-style pistols presents no special nor compelling threat to law enforcement officers on the hypothetical and speculative basis of concealability.

Nor are AR-style pistols a threat to law enforcement in reality. As noted previously, not a single instance of a law enforcement officer being shot with an AR-style pistol has been produced in the public debate surrounding the ATF Framework.

M855 ammunition has primarily sporting use in civilian hands.

This point requires little argument. Millions of rounds of M855 ammunition are fired annually by law-abiding citizens. Prior to recently accelerated purchases prompted by the ATF’s ban threat, M855 ammunition was readily available from many retail sources for approximately $0.35/round. It is well-suited for certain types of target shooting as well as control of tougher-bodied varmints such as feral hogs, which cause billions of dollars of harm to agriculture annually, as well as unquantified harm to native flora and fauna species. Ammunition that is not mass-produced to a single, international specification, and which could be effectively used in place of M855, generally ranges from approximately $0.65/round to upward of $2.00/round. ATF’s proposed ban stands to dramatically increase the cost of sporting recreation, safety training and responsible maintenance and protection of lands for millions of law-abiding sportsmen, sportswomen and land owners across America.

Further, James Pasco, executive director of the Washington office of the Fraternal Order of Police, has opined, “Any ammunition is of concern to police in the wrong hands, but this specific round has historically not posed a law enforcement problem.”

The proposed ATF Framework threatens hunting and other sporting activities across the board.

Returning to the concept that the ATF Framework is explicitly and objectively about precedent – “framework for determining”, it is worthwhile to consider the range of its consequences, in addition to the one (M855 ban) enumerated for immediate effect by the ATF.

…the final bill passed by Congress clearly expanded the definition of armor piercing ammunition to include any ammunition containing the specified metal content “which may be used in a handgun.” (ATF Framework, p. 4)

The ATF’s framework for sweeping the nation’s most popular sporting rifle caliber into the definition of handgun ammunition logically also captures all calibers in which an AR-style pistol has been chambered, and would immediately apply to any new AR-style pistol that is constructed, even if only as a one-off by a single hobbyist. AR-style rifles are currently chambered in many calibers: .204, .223/5.56mm, .243/6mm, .264/6.5mm, .277/6.8mm, and .308/”300”/.30/7.62mm. Due to the modularity and adaptability that has made the AR America’s most popular sporting rifle, there is no technical barrier to constructing an AR-style pistol in any of these or other intermediate calibers, and in fact most have already been done. This range of ammunition calibers covers hunting all game sizes, from prairie dogs to bears and moose.

Conspicuously absent from the LEOPA and ATF Framework is any proposal for a controlling definition of “brass”. Webster’s Ninth New Collegiate Dictionary defines brass as “an alloy consisting essentially of copper and zinc in variable proportions”. Wikipedia states “Brass is an alloy made of copper and zinc; the proportions of zinc and copper can be varied to create a range of brasses with varying properties.” The industry-supported website www.copper.org labels as “red brass” engineering alloys of copper with as little as 5 percent zinc. This is echoed in other classifications of “gilding metal” – used for bullet jackets – as a copper alloy brass with 5 percent zinc content. Although a lay person’s understanding is that brass has a yellow appearance and copper a red appearance, my experience with materials as a mechanical engineer has shown that copper alloys with 10-15 percent zinc content retain the primarily-red appearance of pure copper.

Because there is no controlling material content threshold to limit application of the word “brass” in the definition of “armor piercing ammunition” – 18 U.S.C. 921(a)(17)(B), nothing would restrict the ATF from applying the definition to the gilding metal used for “all copper” projectiles in any caliber in which an AR-style pistol has been chambered. All-copper projectiles are required to satisfy lead-free hunting laws in several states, and their ability to reliably and humanely take challenging game makes them popular in all regions of the U.S. All-copper projectiles are also favored by some target shooters for their inherent uniformity, and thus accuracy.

If all-copper rifle bullets were held to require an exemption due to zinc content, each manufacturer would be forced to request an exemption for every projectile style, weight, etc. in each cartridge in which it was loaded. This would clearly be an unreasonable administrative burden to the manufacturers, as well as to the Attorney General’s responsibility, now delegated to the ATF. And of course, only cartridges in which no AR-style pistol has ever been chambered would be eligible for the exemption.

Particularly troubling, the ATF took care to point out that it “did not exempt the projectiles before the cartridges were assembled.” (ATF Framework, p. 14) It is absurd that the manufacture and/or importation of the projectiles would not be covered by the exemption allowing the manufacture and/or importation of cartridges into which they are loaded. At best, the projectiles would have to be of foreign manufacture, and only assembled cartridges could be imported under an exemption.

Setting this significant implementation hurdle aside, the ATF’s position would mean that hand loading of lead-free hunting and target projectiles into rifle cartridges would not be covered by such an exemption. For reasons of both cost and the accuracy essential to target shooting and the reliably humane harvesting of many game species, the practice of hand loading ammunition is widespread and regarded by many as integral to the shooting sports. The price per round of factory-loaded ammunition typically ranges from two to three times the cost of hand-loaded ammunition, a ratio that would only be increased by the above-mentioned administrative burden. The control of minute tolerances necessary to achieve the highest levels of rifle accuracy required for many sporting purposes can only be achieved on an individual basis. Further, many sportsmen and women enjoy the technological aspects of hand loading as a safe and educational hobby in itself.

In the absence of an appropriate controlling definition of “brass”, the ATF Framework would effectively ban the sale of most all-copper projectiles, severely restricting the traditional sporting activities of hunting and target shooting, with harmful consequences to commerce and the environment.

The ATF’s “logic” is dangerously broad in potential application – language in the Framework implies ATF would be compelled to follow through with any and all additional restrictions and infringements.

The ATF takes pains to assure the public that its intent to impose restrictions and infringements is limited and specific:

ATF recognizes that there will be some cartridges currently manufactured using non-restricted materials (e.g. lead or brass) that have been used by hunters and target shooters for sporting purposes, that if manufactured from listed materials, will not be eligible for exemption under the framework. These cartridges will remain available in the non-restricted materials, as they are today. (ATF Framework, p. 14) (bold emphasis added)

(The use of the word “brass” above can only be regarded as careless, at best an incomplete and unclear acknowledgement that cartridge cases, not projectiles, are almost universally made of brass.) However, the overall tone, pattern of argument and even specific language of the ATF Framework urge otherwise:

To ensure consistency, upon final implementation of the sporting purpose framework outlined above, ATF must withdraw the exemptions for 5.56 mm “green tip” ammunition, including both the SS109 and M855 cartridges. (ATF Framework, p. 14) (bold emphasis added)

A citizen can only assume that, if the Framework is allowed to stand and become established, the ATF will regard itself as compelled to fully implement the broadest and most restrictive possible interpretations. Some of the potential implications of that seemingly inevitable approach are outlined in the previous section.

For these reasons, I again urge the ATF to reverse its stated intent and implement a rational application of the “likely use” test of the sporting purposes exemption in 18 U.S.C. 921(a)(17)(C), as directed by the U.S. Supreme Court.

Sincerely,

 

Concerned Citizen

Houston, Texas