Michigan Law Enforces Obama's Latest 'Pen and Phone' Gun Control With Draconian Penalties
It turns out that the stealth U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives proposal to prohibit the most popular cartridge used by civilians in the AR-15, America’s most popular civilian rifle, will be enforced by draconian penalties in Michigan law. This prohibition will affect all owners of .223 Remington caliber rifles, not just the AR-15. BATFE has indicated that they are withdrawing a ‘sporting purpose’ exemption for the standard issue U.S. Military 5.56x45mm NATO (.223 Remington) cartridge, claiming that it is armor piercing handgun ammunition under the 1986 Law Enforcement Officer Protection Act.
Michigan legislators cloned LEOPA in 1990 with one important distinction. The Michigan statutory language actually prohibits any use of prohibited ammunition. From MCL 750.224c:
(1) Except as provided in subsection (2), a person shall not manufacture, distribute, sell, or use armor piercing ammunition in this state. A person who willfully violates this section is guilty of a felony, punishable by imprisonment for not more than 4 years, or by a fine of not more than $2,000.00, or both.
‘Use’ includes loading a rifle magazine with prohibited ammunition or even firing it in a single shot rifle. The Federal LEOPTA at least allows gun owners to use up stocks of ammunition on hand when a cartridge is prohibited. A bunch of Michiganders are about to become felons if BATFE gets its way thanks to another triumph of legislative draftsmanship by our Legislature. Violating MCL 750.224c is a four year felony, a rude surprise to someone owning M855 ammunition. Perfectly legal one day, a felon the next. The joy of multilevel government regulation.
Background
BATFE actually does not have any statutory authority to prohibit civilian distribution or possession of U.S. Army M855 specification ammunition under 18 U.S.C. 921 (a) (17) (B) [LEOPA], regardless of any ‘sporting purpose’ determination. Not having statutory authority has never stopped BATFE from abusing gun owners in the past, particularly when they have the backing of an Administration as hostile to gun ownership as President Obama’s. BATFE issued the ‘sporting purposes’ exemption for M855 specification cartridges back in 1986 under the presumption that M855 cartridges could be classified as armor piercing handgun ammunition. Apparently legal precedent means little in the age of Obama.
The LEOPA statutory language supposedly authorizing a prohibition, cited by Denise Brown on Page 3 of the ATF FRAMEWORK FOR DETERMINING WHETHER CERTAIN PROJECTILES ARE “PRIMARILY INTENDED FOR SPORTING PURPOSES” WITHIN THE MEANING OF 18 U.S.C. 921 (a) (17) (C)”, reads:
(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 words ‘constructed entirely’ are emboldened for a reason which will become clear.
The projectile specified in M855 specification ammunition, U.S. Army TACOM ARDEC Drawing 9342869, has a combined steel and lead metal core. 18 U.S.C. 921 (a) (17) (B) (i) applies only to projectile cores:
….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….
The core of the M855 projectile is not constructed entirely of steel, nor is the steel in the core of the M855 projectile combined with “tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium”. Rather, the steel in the projectile core of TACOM ARDEC Drawing 9342869 bullet is at the front of a lead metal component. These two components together, both within the projectile jacket, constitute the M855 projectile core. This is clearly shown on U.S. Army TACOM ARDEC Drawing 9349656, which establishes the engineering requirements for the M855 projectile core.
By any correct reading of the English language, the core of the M855 projectile is not composed entirely of steel, or a combination of steel with any of the other metals specified in 18 U.S.C. 921 (a) (17) (B) (i).
The other part of 18 U.S.C. 921 (a) (17) (B) (ii) applies only to projectiles larger than .22 caliber, designed and intended for a handgun, so the jacket weight percentage of the .22 caliber M855 projectile is not legally relevant to a determination of its status as ‘armor piercing ammunition’. Also MIL-C-63989C (AR), the U.S. Army specification covering M855 cartridges, does not mention handguns. Further, the gas port pressure requirements established in Section 3.10.3 of MIL-C-63989C (AR) constructively exclude the ‘AR Type handguns’ cited in the devious BATFE proposal as an application for M855 cartridges.
Before the 18 U.S.C. 921 (a) (17) (c) ‘sporting purposes’ exemption was issued, BATFE should have established that M855 projectiles are indeed subject to armored piercing ammunition regulation under 18 U.S.C. 921 (a) (17) (B). BATFE did not make this case in 1986, nor can BATFE now make this case without abusing the clear statutory language. But in the age of Obama, statutory language is no impediment to ‘pen and phone’ governing.
Another Important Legal Issue
BATFE is making a brazen attempt to to circumvent the posting and commenting requirements of the U.S. Administrative Procedure Act of 1946. The Administrative Procedure Act of 1946 requires posting of most new Federal regulations in the Federal Register followed by a comment period before implementation. The regulation(s) dictating BATFE’s M855 ban were not posted, nor was there a comment period. BATFE is referencing the ban of M855 cartridges as a foregone conclusion in Denise Brown’s text.
You still have time to submit an official protest comment against BATFE’s devious gun control proposal. Feel free to use any portion or all of this text in a response to BATFE at APAComments@atf.gov. You have until March 16th to register your opposition with BATFE. If they get enough comments, even BATFE might reconsider their baseless regulation.
(21)Nuh Uh.
(0)
No need to panic yet. Look at the definition of armored piercing projectile under section 3a of the Michgian law.
M855 does not qualify as its core is not made "entirely out of...steel." Michigan's law and definition of AP ammunition is not dependent on or influenced by any declaration by ATF so no worry on that score.
On the other hand, the ban is a real worry so do indeed make polite comments pointing out your opposition to ATF's proposed ban and that ATF is wrongly interpreting the Federal Statute that similarly, when read as written, does not ban M855 contrary to ATF's positiion.
Yes, well, let's have a better visual understanding for folks who may not grasp all the metallurgy jargon at play.
Please do visit the description section to view Jerry's sample letter for the BATFE, and legislators.
H/t Wirecutter
Panic
Actually, Michigan's law is entirely dependent upon 18 USC 921 (a) (17) (c). From MCL 750.224c:
(4) The director of the department of state police shall exempt a projectile or projectile core under subsection (3)(a)(iii) or (iv) if that projectile or projectile core is exempted under chapter 44 of title 18 of the United States Code. The director of state police shall exempt a projectile or projectile core under subsection (3)(a)(iii) or (iv) only by a rule promulgated in compliance with the administrative procedures act of 1969, Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.328 of the Michigan Compiled Laws.
When BATFE withdraws the M855 cartridges' 'sporting purpose' exemption, their use in Michigan becomes a four year felony.
Actually, you appear to have overlooked one minute but, very important fact. When it comes to Aaron, he envisions himself as the smartest mother****** who ever shat between a pair of feet, and all the shysters pimping legalese contrary to our Natural Rights love that about him.
Ah, such civility and uncalled for personal attack. CS, really doesn't not become you.
Section 3 is not dependent on Section 4, 4 is an additional way a projectile may be determined to be exempt.
And for the record CS, I do not envision myself the smartest in the room. just smarter and more polite than you.
Aaron -
They are 'tie barred' in Michigan legislative parlance. The only reason that M855 ammunition is legal for use in Michigan now is Section (4) of MCL 750.224c effectively requires the State Police to recognize a BATFE 'sporting purposes' exemption. While the Director of State Police could issue an independent exemption, s/he has not done so and would be unlikely to do so in opposition to BATFE. And were the bogus BATFE determination that M855 cartridges are 'armor piercing cartridges' stand, the Director of State Police would be compelled to recognize that too.
Some of us get emotional when dubious information threatens our natural rights.
10x25mm,
Where is this 'tie-bar' dictated?
MCL 750.224c(4) orders the Director of the State Police to recognize a BATFE 'sporting purposes' exemption: "The director of the department of state police shall exempt a projectile or projectile core under subsection (3)(a)(iii) or (iv) if that projectile or projectile core is exempted under chapter 44 of title 18 of the United States Code".
Doesn't require any action on the part of the Director of State Police. All BATFE 'sporting purposes' exemptions have to be recognized, thus making such ammunition legal in Michigan under MCL 750.224c. However, were that BATFE exemption to end, the Michigan exemption would end unless the Director of State Police issued a Michigan level exemption, and no such Michigan level exemption now exists.
What is confusing about this situation is that the BATFE was ostensibly withdrawing an exemption, but they had never made the 'armor piercing' determination officially. Since LEOPA gives the BATFE unchallenged control over such exemptions, many gun owners took the position that M855 was not 'armor piercing ammunition' under statute. There is a quaint presumption under law that a statute means what it says in plain English. So here we had a shot at overturning BATFE, at least in a court of law.
A very confusing situation, but typical of American gun control laws.
So there is no tie bar.
Yes, there's the requirement that MSP exempt cartridges that have been exempted by Chapter 44 of Title 18.
If the round isn't exempted, then it still must meet the description, as described in (3)(a), to be construed as armor piercing under state law.
10x25MM, It's not tie-barred as it doesn't qualify as AP under 3, only if it was AP under Sec 3 does Sec 4 come into play as an exemption.
In addition, since the Michigan State Police has never seemed to have made such an exemption determination under section 4 in regards to M855, section 4 is not the reason that M855 is not considered AP ammunition.
It is Section 3a that is determinative and under Section 3a as the core is not made entirely of steel, it doesn't get to be considered for exemption as it doesn't meet the definition to be made exempt from it. Much the same way an all-lead bullet doesn't need to be specially exempted as it doesn't meet 3a either.
I certainly agree that dubious information is unhelpful, and certainly am against any ATF or Obama administration assault on our Second Amendment and Art 1 Sec 6 rights.
However, getting emotional and wading into a conversation by throwing personal attacks and profanity is hardly a useful contribution. [Says who? You? Piss off, Aaron. -CS] Better for some to spend the effort doing useful things like commenting on the proposed ban and working to stop it than needlessly insulting people who actually agree with your position. [Not in agreement with your position nor am I interested in incrementalism. Either it's Natural Rights, which shall not be infringed, or it's a lawyer's way of making money. - CS]
Regardless, its good ATF is purportedly moving away form this now, but expect them to try again once the furor has died down.
Aaron -
MCL 750.224c(4) orders the Director of the State Police to recognize all BATFE 'sporting purposes' exemptions. Doesn't require any action on the part of the Director of State Police. All BATFE 'sporting purposes' exemptions have to be recognized,
The crucial question here was whether M855 cartridges met the 18 USC 921 (a) (17) (b) test. BATFE was making a legal presumption that they did, and their legal presumption would have stood had we not challenged it. This was a question that gun owners could litigate. LEOPA gives you no right to force a BATFE 'sporting purposes' exemption or challenge an exemption withdrawl in a court of law.
You are correct that a 'sporting purposes' exemption is legally moot if the the cartridge in question does not meet the 18 USC 921 (a) (17) (b) test. But BATFE is superior to you in a court of law and their legal presumption would stand even if you were to challenge it. I don't like this one bit, but we are a cryptototalitarian state these days. And don't expect the Director of State Police to challenge a BATFE legal presumption on your behalf. Just won't happen.
Even if the exemption is lifted, it still would need to meet the definition as indicated in 750.224c(3)(a).
So no, it's not entirely dependant.
We Just Dodged the Bullet (Ban)
Just 15 minutes ago, BATFE backed down. From http://thehill.com/regulation/pending-regs/235216-atf-shelves-proposed-bullet-ban">The Hill:
The BATFE will be back with some new outrage. It is their style.
As seems to be par for the course here, we have one alarmist who misreads the statutes and sounds an alarm. Then someone like Aaron--a real lawyer--comes along and patiently and politely explains the misunderstanding away, only to have the predictably tiresome Corinthian come along and start hurling insults like a junior high kid, and contributing absolutely nothing of substance.
Corinthian, I get that your life sucks and the internet is the only place where you can puff up in safety without fear of someone punching you in the mouth like many of us would be tempted to do if you dared act this way in a face-to-face setting, but this sort of childishness is exactly why RightMi is dismissed as a joke by anyone seriously interested in actually bringing political change to Michigan. It's not helping, fella. Calm down and act your age, and if you can't do that, maybe the internet isn't for you.
Thanks Aaron and Jason for bringing some common sense to this discussion.
How many comments have you posted, and have now done exactly what you claim Scales does?
Feel free to join in. Scales might even be seen as 'rude' to me sometimes, and I have the power to shut the place down if it was my prerogative. Unlike the effeminate victims that breed like rats today, I can handle a dis or two.
As for the "Alarmist," I tend to read the statutes in the same way, and realize that the slight differences which law is parsed out. It is NEVER in favor of the little guys. http://rightmi.com/the-king-says-vote-yes-on-may-5th/ is a perfect example. If those in government wants to make your life miserable, they will find a way. It is better to give them ZERO plausible reason. And let me say this: "bureaucrats suck."
Gosh I am so glad you could stop by and throw out the wuss card. But hey, why waste your commentary on the site that is a joke?
Martini -
You might benefit from a quick review of regulatory law
Go to the fourth page and look at the selected SCOTUS decisions. The 1984 Chevron decision is a good place to start. Bear in mind that they apply to state level regulatory law as well. Might change your mind on the threat posed by BATFE's trial balloon to Michigan shooters.
OK, Jason. You circle the wagons around your idiot buddy and I'll join the multitudes of people who don't waste any time on your little site.
And normally the conversation would stop here.
But just so there is a place of reference going forward, perhaps we should be clear. If you aren't a confident adult, or your feelings get hurt easily, perhaps this isn't the stop off place for you. As for harshness? I will gladly tolerate a harsh comment or thread for the wealth of information accumulated by someone like CS. If you want pussyfoot theater, make it yourself. (and I will even link to it) Otherwise ignore what you need to.
Having said that, I find a certain irony in the ONE comment posted, which critiques maturity and harshness, yet engages in the same way. And by golly we don't even know you as you have never offered anything of substance or anything else ..EVER. Even your follow up comment calls someone a name.
We have a word for your exhibition. Its called "cognitive dissonance."
Note that you have not at this point been called any name.
The U.S. Constitution protects against this--ex post facto laws. A regulation is not law--and we simply should get rid of all these agencies--making regulations which somehow get enforced by law enforcement. We need to really start letting these govt employees know--Hey, you work for us.