The ATF's Ammo Ban Is Legal

The ATF's Ammo Ban Is Legal

It may surprise you to see the headline above accompanied by my byline: I argued the opposite, albeit tentatively, just a week ago. But since then, a lot of new information has come to light, and I have changed my mind.

To recap the basic question: A 1986 law defined "armor piercing" ammunition as a projectile or projectile core that can be fired from a handgun and is made entirely from a hard metal such as steel. However, the law allowed the Treasury secretary (now the attorney general) to exempt ammo that meets this definition but is "primarily intended to be used for sporting purposes." Almost immediately, "green tip" ammo -- which contains a steel tip but a lead core behind it -- was classified as "armor piercing" but given the exemption. The ammo is popular for AR-15 rifles but can be fired from certain handguns as well. The ATF (to which the attorney general has deferred) would now like to pull the exemption.

The legal case against the move is obvious enough: This ammo's core is not made "entirely" from steel; it's part lead and part steel, and never should have been classified as "armor piercing" to begin with. But a deeper reading of the legislative history, and a deeper understanding of the terminology, essentially destroys this argument. The "penetrator tip" is a separate core.

First, the legislative history: As I showed in a follow-up to my original post, the Treasury Department informed Congress while the law was being drafted that "hard metallic penetrator[s]" would be considered cores. Congress did not change the relevant language to prevent this reading. Given that courts tend to defer to the bureaucracy when a statute doesn't make the intent of Congress clear -- and the language refers to "a projectile or projectile core," not to, for example, "a projectile or its core" -- this alone is enough to make a legal challenge unlikely to succeed.

You might respond that the plain language of the law is what really matters, and that both Congress and the Treasury Department so obviously didn't understand what the word "core" means that their interpretation should carry no weight. But as odd as it may seem to refer to a tip as a "core," David Higginbotham of Guns America has shown that this usage is fairly common. In fact it even shows up in patents: "As shown in FIG. 1, the M855 bullet [one type of "green tip"] has two aligned cores."

Of course, that ATF can ban this ammunition doesn't mean it should. I don't think these rounds pose any special danger to police officers: A steel-free bullet of the same size will pierce police armor just as easily; the handguns that fire them are big and unwieldy and thus not great guns for criminals; there doesn't seem to be any evidence that these rounds are currently popular with cop killers. But like it or not, these rounds meet the legal definition of "armor piercing," and therefore the attorney general gets to decide whether they're legal.

[Update: ATF has announced that, rather than finalizing the ban when the comment period ends next week, it will consider the objections raised and "provide additional open and transparent process" before moving forward.]

Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen

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