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.
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.