Why Isn't There A Legislative Push to Get Rid of the "Sporting Purposes" Clause of the GCA?

[dogtown tom]

LogicMan

Quote:
First, "designed for use in a handgun" isn't what led ATF to attempt to ban M855, it was the "may be used in a handgun" language in 921a.17.A of what constitutes "armor piercing ammunition" as well as the last paragraph that gives the Attorney general wide latitude in determining "sporting purpose" of ammunition.

1) I know that "designed for use in a hand gun" isn't what led the ATF to attempt a ban, the point is that the fact that M855 wasn't designed for use in a hand gun automatically undermines the ATF's authority to restrict it.

Wrong.

2) There you see an example of the arbitrariness regarding that "sporting purposes" language to ban things. So by having a pro-gun Attorney General, they wouldn't use that to ban anything

FYI, the Attorney General isn't the ATF.

3) The "may be used in a handgun" is one part of the definition of armor-piercing, and M855 does not meet the complete definition, so it still fails:

Wrong.
To meet the definition it can match either paragraph...that's what "or" allows.

(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.

Take five minutes and read the link I posted above to ATF reasoning regarding M855.

Quote:
Are you kidding? Who do you think caused ATF to put the brakes on with the proposed ban on M855? It was merely an uproar from Congress....and didn't even require a vote.
Ever heard of US vs Thompson Center?
Obviously not.

An uproar from a predominantly Republican Congress at a time when support for gun rights is fairly strong. As for the courts, again, you are living in a fantasyland, IMO.

Well, thanks for agreeing with me. You wrote "What makes you think that Congress or the courts will stop the ATF from over-stepping their bounds? "
I pointed out instances of both.....that were REALITY. I'm not the one ignoring reality here.

Quote:
Either you don't know the definition of "arbitrary" or you don't know what administrative law really is.
ATF is always very careful to cite the relevant citation from Federal law and the CFR when issuing a ruling or determination letter. That doesn't mean they aren't going to be spanked by congress or the courts.

They cite a very selective interpretation and as you said, the sporting purposes clause in the law gives wide latitude.

So....you agree they are basing their rulings on existing regulations? (whether flawed or not)
Then what is your problem?

Yes, I do vote, but that doesn't change the fact that all of those government agencies represent a shadow bureaucracy that is completely unelected.

Well no kidding.
I have news for you, the US military isn't elected, neither are mailmen, school teachers and the guys that pick up your garbage.

As far as "shadow bureaucracy"?.......stop listening to Alex Jones.

In addition, the creation of many of them was done in the past, and once you create a government agency, it is almost impossible to get rid of it. Reagan wanted to get rid of the Department of Education, which had been created by his predecessor, Jimmy Carter, but still couldn't do it. The issue also is more complicated because a lot of government agencies should be there, but it nonetheless creates the problem of a shadow bureaucracy.

What gets said on the campaign trail is for getting votes. Once in office, politicians see things differently.

Quote:
It's called the Administrative Procedure Act of 1946.
Read it. It details what authority CONGRESS wanted a Federal agency to have.

There are plenty of things regarding what a part of the government is "supposed" to have the authority to do versus what it actually does. The Constitution prohibits the government from doing a lot of things, but that hasn't stopped it over they years from doing them. The 2nd Amendment says the government is not supposed to infringe on the right to keep and bear arms, hasn't stopped it now has it?

Maybe you should be arguing with the Supreme Court.

Quote:
That's because Congress gives Federal agencies the authority to promulgate regulations BASED ON the legislation passed by Congress.

ATF cannot "arbitrarily" ban black painted guns for example......they would have to provide a legal reference to an existing Federal law. That's why they told Congress that "bump stocks" aren't machine guns (and why ATF cannot ban them). Once Congress decides to ban bump stocks and passes a new Federal law.....ATF will have to write a regulation the defines the illegal features of a bump stock.

ATF is looking into the banning of them right now.

No, it's a request for comment.
They are complying with the wishes of Congress and the Attorney General. In order to ban bump stocks there would need to be a change to existing federal law.

And "promulgate regulations based on legislation" gives a lot of latitude to essentially make law in certain instances. The EPA has been notorious for that as of late.

They only have as much latitude to promulgate regulations as the enabling law allows.

 

[dogtown tom]

Bartholomew Roberts dogtown tom, so essentially, your argument is that ATF rulings cannot be considered arbitrary because although they reach conflicting results and change without any change in the underlying law they rely on, they cite to and are based on an interpretation of federal law (though that interpretation may change)?

It's not just ATF, but regulatory rulings by any Federal agency.
If deemed "arbitrary" by the courts then they are invalid.

Effectively, they are arbitrary only in outcome but not rationale?

I think you would agree that when ATF issues a ruling that we agree with we don't consider it arbitrary.....such as the removal of the CLEO signoff for NFA transfers. Yet when it's a ruling we disagree with it suddenly becomes arbitrary?

Any Federal agency that issues rulings on existing Federal law and regulations damned well better have solid footing on which to make that ruling. If they don't heads should roll.

Quote:
And ATF has already been quoted in the press as saying bump stocks are not currently prohibited under any federal law or ATF regulation.

We’ll see how that statement holds up during the current review.

The current review won't be any different than the last....using current regulations.
What is yet to be determined is what NEW definition of machine gun will ATF try and implement. But we don't need to worry, after all Trump is pro Second Amendment.

 

[dogtown tom]

44 AMP Congress must have the ability to delegate the making and enforcement of regulations to lesser Federal agencies.

Congress has neither the time, nor the "temperament" to manage the tiniest details that govern our lives, NOR DO WE WANT THEM TO!

They do get involved in some things, where they feel a political advantage is to be gained, and their micro-management of certain things seldom leads to optimal results, and often the opposite.

SO, this leaves us with the various agencies to create the regulations that will be used to enforce the laws. The problem with this is, that those agencies are bureaucracies, which, by their very nature will expand to fill the space available, and beyond, unless specifically checked by higher levels of govt. authority.

Well said.

The second part of the problem is that these agencies are staffed by human beings, a percentage of which are petty, small minded people concerned with nothing beyond their own personal status and power. And when these people become "kings" of their own little world, they strive mightily to expand their kingdoms.

Yet no matter how petty or small minded they must still abide by the underlying law. The only ones with real status and power would be the political appointees.....not typically the civil service level staff. No staff level determination sees the light of day before approval by a political appointee.

The easiest way for them to do that is to interpret, and re-interpret the regulations to suit their goals. These are your "arbitrary" decisions. Decisions which, unfortunately they have the authority to make, following an established procedure.

If the interpretation is based on existing Federal law and supported by the relevant citations it is by definition not arbitrary is it?

"arbitrary describes a course of action or a decision that is not based on reason or judgment but on personal will or discretion without regard to rules or standards."

Maybe you are using a different definition?

They can propose literally anything, and use the most specious logic to connect their proposed change to existing law. IF the proposal manages to "fly under the radar" during the public comment period, it becomes established, and carries the force of law.

While that may be true, this is why we have a system of checks and balances.

Until/unless the agency changes its "mind" at a later date. Look at the history of certain items and the ATF. Pistol stocks (for one example) have been legal, illegal, legal again (with certain restrictions), and I'm not certain what the current interpretation of their legality is.

Well, no.
How can you make an argument with such a terrible understanding of Federal law? "Pistol stocks" with a few narrow exceptions have required a Federal tax stamp since 1934. Using a shoulder stock on a pistol would require a tax stamp before attachment.

If you are referring to "arm braces" attached to a handgun, then you should understand that ATF has NEVER deemed them illegal when used as an arm brace in the manner as described in their determination letter. NEVER has ATF exempted them from the NFA as a shoulder stock.

ATF foolishly didn't make it clear in their original determination letter that attaching anything to a handgun with the intent to use it as a shoulder stock REMAINS illegal unless you possess a an SBR tax stamp. Their subsequent "correction" letter implied that "shouldering" an arm brace was illegal.....until they reversed themselves. The NFA law remains the same....attach something to a handgun with the intent to use it as a shoulder stock requires a tax stamp.

Watch and see if "bump stocks" don't go the same way, becoming illegal (a regulated item at the least) with the whim of the prevailing political winds.

And that would require the current definition of "machine gun" in Federal law to change.

The ATF was entirely correct to rule they were not a regulated item when the issue came before them. There was (and currently still is) no law covering their ownership and use. I expect that to change, even if there is no change to the governing law(s). A simple "re-interpretation" of the regs could do it, Although, with all the publicity surrounding this particular item, I expect Congress to push for a change in the law, to ensure easy acceptance of the reinterpreted regulations.

Sooo...........ATF was arbitrary AND correct?

If you are looking for a root cause for our current situation, you might look back a ways to where Congress screwed us, and themselves, by giving the regulations the force of law. Prior to that violating a regulation and violating the law were separate things, and it was up to the courts to determine if the law was actually violated when a given regulation was.

True.

 

[zukiphile]

I think you would agree that when ATF issues a ruling that we agree with we don't consider it arbitrary.....such as the removal of the CLEO signoff for NFA transfers. Yet when it's a ruling we disagree with it suddenly becomes arbitrary?

Any Federal agency that issues rulings on existing Federal law and regulations damned well better have solid footing on which to make that ruling. If they don't heads should roll.

That's not how our system works. Agency action and regulation can exceed or contradict the legislation on which it is purportedly based and have the effect of law until substantial resources are devoted to reversing the error. that leaves ample room for abuse. 44 AMP's explanation of the dangers of regulatory growth aren't easily dismissed by people who soberly consider the effects on limited government.

The implication that all objection to agency rulings is unprincipled becomes some rulings are reasonably related to legitimate agency goals doesn't bear a lot of scrutiny.

 

[dogtown tom]

zukiphile

Quote:
I think you would agree that when ATF issues a ruling that we agree with we don't consider it arbitrary.....such as the removal of the CLEO signoff for NFA transfers. Yet when it's a ruling we disagree with it suddenly becomes arbitrary?

Any Federal agency that issues rulings on existing Federal law and regulations damned well better have solid footing on which to make that ruling. If they don't heads should roll.

That's not how our system works. Agency action and regulation can exceed or contradict the legislation on which it is purportedly based and have the effect of law until substantial resources are devoted to reversing the error.

It's EXACTLY how our system works.......regulations that contradict the actual Federal law are subject to scrutiny and review by Congress and the Courts....it happens every day.

that leaves ample room for abuse.

Yes it does.

44 AMP's explanation of the dangers of regulatory growth aren't easily dismissed by people who soberly consider the effects on limited government.

No argument there.

The implication that all objection to agency rulings is unprincipled becomes some rulings are reasonably related to legitimate agency goals doesn't bear a lot of scrutiny.

Huh? Who said anything of the sort?
Not me or anyone else in this thread.

 

[zukiphile]

Any Federal agency that issues rulings on existing Federal law and regulations damned well better have solid footing on which to make that ruling. If they don't heads should roll.

That's not how our system works. Agency action and regulation can exceed or contradict the legislation on which it is purportedly based and have the effect of law until substantial resources are devoted to reversing the error.

It's EXACTLY how our system works.......regulations that contradict the actual Federal law are subject to scrutiny and review by Congress and the Courts....it happens every day.

Emphasis added.

That's very far from heads rolling, as the explanation of the mere potential of expensive and sanctionless judicial correction should indicate to you.

Yet when it's a ruling we disagree with it suddenly becomes arbitrary?

The implication that all objection to agency rulings is unprincipled becomes some rulings are reasonably related to legitimate agency goals doesn't bear a lot of scrutiny.

Huh? Who said anything of the sort?
Not me or anyone else in this thread.

Emphasis added. Implication - the conclusion that can be drawn from something, although it is not explicitly stated.

As for the other term that is your recurring obstacle - arbitrary - "(of power or a ruling body) unrestrained and autocratic in the use of authority.
"arbitrary rule by King and bishops has been made impossible"
synonyms: autocratic, dictatorial, autarchic, undemocratic, despotic, tyrannical, authoritarian, high-handed; ..."

https://www.google.com/search?ei=JJ...047...0i131i20i264k1j0i131i67k1.0.nRXwl3A98Bo

Both parts are important elements of 44AMP's point.

 

[44 AMP]

Yet no matter how petty or small minded they must still abide by the underlying law. The only ones with real status and power would be the political appointees.....not typically the civil service level staff. No staff level determination sees the light of day before approval by a political appointee.

This is a "yes and no" kind of thing. Yes, the kingdom makers must abide by underlying law, when they are caught at it.

The "real status and power" of the political appointees is both real, and unreal. Its recognized by the "political" people, but to the career service worker, it is a transitory thing. That political appointee, no matter how much power he/she wields, is a temporary thing in the eyes of long time service workers. The politically appointed boss WILL be replaced at the whim of the administration. If not the current one, then the next. And the long service workers know this.

And yes, nothing produced by those "in the trenches" goes public until after the political boss approves it, but without the work of those in the trenches there would be nothing to go public with.

That politically appointed boss directs the focus of the effort, but doesn't do the work himself.

How can you make an argument with such a terrible understanding of Federal law? "Pistol stocks" with a few narrow exceptions have required a Federal tax stamp since 1934. Using a shoulder stock on a pistol would require a tax stamp before attachment.

If you are referring to "arm braces" attached to a handgun,

Perhaps I should have been more clear. I'm not referring to arm braces, I'm talking about actual stocks, such as those for Lugers, Mausers, and some Hi Powers.

Many Lugers and other guns had their stock attachment lugs ground off, so that the owner could have both the gun, and the stock and not run afoul of Federal law, without the tax stamp.

Then these guns were classified Curio & Relic and you could have a stock that would attach to the gun, without a stamp.

Then later, the ATF changed their mind, so only "original" stocks were legal without a tax stamp. Reproduction stocks, identical in every way to the original (including lack of dates and serial #) were only legal to put on the pistol with a tax stamp.

TO some people these changes are "refining the regulations" to others they are arbitrary decisions.

Whether or not something is an arbitrary decision gets even murkier when the language used in the law is written too broadly.

When the law used for the basis of the decision says things like "any part or combination of parts, designed or intended to..."

That allows for the idiocy of regulating a single part as if it were an actual complete firearm. technically legal but it makes no sense. You can't shoot someone with an M16 auto sear alone, but you can get the same prison time for having one, as you would for having a fully functional non registered machine gun.

Something like that takes the idea of constructive possession a bit too far, I think.

 

[Bartholomew Roberts]

It's not just ATF, but regulatory rulings by any Federal agency. If deemed "arbitrary" by the courts then they are invalid.

I’ve written about 600 equivalents of “private letter rulings.” About six of those have gone to litigation and all six are still unresolved even at the lowest district court level and although I no longer work there.

All six of the lawsuits challenging those decisions were brought by corporations or municipal organizations with considerable resources and none of them are even near a trial date.

Your average joe stands little chance of getting justice vs. ATF through the court system.

 

[LogicMan]

FYI, the Attorney General isn't the ATF.

I know that, but I was pointing out the issue of having pro-gun people in the government bureaucracies with regards to the "sporting purposes" clause.

Wrong.
To meet the definition it can match either paragraph...that's what "or" allows.

Quote:
(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.

Take five minutes and read the link I posted above to ATF reasoning regarding M855.

I did, and it still fails both definitions.

1) The first definition is that it can be used in a handgun and is constructed from one or a combination of a list of materials. But M855 is constructed from steel and lead. Steel is a mentioned material, but M855 is not constructed primarily of steel, it is a combination of steel and lead, and lead is not a mentioned material.

2) The second definition says it must be intended for use in a handgun, which it isn't. So it fails that definition as well.

Well, thanks for agreeing with me. You wrote "What makes you think that Congress or the courts will stop the ATF from over-stepping their bounds? "
I pointed out instances of both.....that were REALITY. I'm not the one ignoring reality here.

You are assuming that Congress and/or the courts will stop the ATF from over-stepping their bounds. While that happened with Congress recently, that does not mean that it will happen in the future. And regarding the courts, they are pretty anti-gun as they have shown late.

So....you agree they are basing their rulings on existing regulations? (whether flawed or not)
Then what is your problem?

My problem is as I originally said, their arbitrariness.

Well no kidding.
I have news for you, the US military isn't elected, neither are mailmen, school teachers and the guys that pick up your garbage.

As far as "shadow bureaucracy"?.......stop listening to Alex Jones.

I don't listen to Alex Jones. And when I say "shadow bureaucracy," I'm not talking conspiracy theory, I mean exactly as the term describes, i.e. a bureaucracy that exists mostly in the shadows. And when you look at the recent high-level corruption in the FBI, IRS, NSA, Secret Service, etc...along with controversial power grabs by the likes of the EPA, concern about the shadow bureaucracy is very legitimate. The major point is that the people have no way to really hold this shadow bureaucracy accountable, and thus to claim that "the people" are the ones who ultimately voted for a lot of these regulations is over-simplifying the issue big-time.

What gets said on the campaign trail is for getting votes. Once in office, politicians see things differently.

Usually they do, but I don't think Reagan was lying there, it's just that he ran up against the political roadblocks to getting rid of an established bureaucracy.

Maybe you should be arguing with the Supreme Court.

Maybe

No, it's a request for comment.
They are complying with the wishes of Congress and the Attorney General. In order to ban bump stocks there would need to be a change to existing federal law.

Hopefully, but IMO a "request for comment" means they are looking into it.

They only have as much latitude to promulgate regulations as the enabling law allows.

Yes, but the law can give a wide latitude.

 

[dogtown tom]

LogicMan

Quote:
FYI, the Attorney General isn't the ATF.

I know that, but I was pointing out the issue of having pro-gun people in the government bureaucracies with regards to the "sporting purposes" clause.

You can have 100% pro-gun people working for ATF and one stroke of the pen from the Attorney General kills that idea doesn't it?

Quote:
Wrong.
To meet the definition it can match either paragraph...that's what "or" allows.

Quote:
(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.

Take five minutes and read the link I posted above to ATF reasoning regarding M855.

I did, and it still fails both definitions.

Well, no you didn't and no, it doesn't.
First, you didn't read the link that explains ATF's reasoning behind their proposed ban on M855.

Second, you didn't read or didn't understand the first paragraph of the definition: "...(B) The term ‘armor piercing ammunition’ means—(i) a projectile or projectile core which may be used in a handgun..."

1) The first definition is that it can be used in a handgun and is constructed from one or a combination of a list of materials. But M855 is constructed from steel and lead. Steel is a mentioned material, but M855 is not constructed primarily of steel, it is a combination of steel and lead, and lead is not a mentioned material.

What you are missing is that M855 has a steel "projectile core".....and that's why it met the definition of armor piercing in 1986. Note that in 1986 ATF specifically exempted M855 and in 1992 .30-06 M2AP because of their sporting use and the fact that there were few if any handguns using that ammunition.

2) The second definition says it must be intended for use in a handgun, which it isn't. So it fails that definition as well.

I've never said that definition applied.....it doesn't need to.

 

[LogicMan]

You can have 100% pro-gun people working for ATF and one stroke of the pen from the Attorney General kills that idea doesn't it?

Sure, which is why I have talked about having pro-gun people throughout the government period.

Well, no you didn't and no, it doesn't.
First, you didn't read the link that explains ATF's reasoning behind their proposed ban on M855.

Second, you didn't read or didn't understand the first paragraph of the definition: "...(B) The term ‘armor piercing ammunition’ means—(i) a projectile or projectile core which may be used in a handgun..."

What you are missing is that M855 has a steel "projectile core".....and that's why it met the definition of armor piercing in 1986. Note that in 1986 ATF specifically exempted M855 and in 1992 .30-06 M2AP because of their sporting use and the fact that there were few if any handguns using that ammunition.

M855 uses a lead core, so it still fails under the definition.

 

[44 AMP]

We've drifted more than a bit from the OP. I think the question has been answered, to sum up, "Why is there no push to repeal the "Sporting Purpose" language in the law?"

#1) it is not important enough to the right people (at this time), nor is it a big concern of the public in general.

#2) really tough, in today political climate to build public support for "relaxing" the restrictions on "military arms" which are "weapons of mass death flooding our streets", etc. After all, in the eye of the under informed public, the gun and ammo MUST be one or the other. It's either something "suitable for sporting use" or it's not, and if its not, then it MUST be something the military uses, and therefore, something we don't want in private hands, because of how dangerous that is to public safety.

ITs not correct, but that is the way a lot of people think today (they've been trained to think that way for a few decades now), and those people have money and votes.

Now, as to the M855 ammo "debate", the attempted ban is a good example of bureaucratic over-reach, and an arbitrary decision. Something that was once allowed, was to be banned, because of a change in the interpretation of
existing rules and definitions.

What you are missing is that M855 has a steel "projectile core".....and that's why it met the definition of armor piercing in 1986.

M855 uses a lead core, so it still fails under the definition.

You're both right.

Described for many years as having a "steel penetrator insert" M855 ammo was designed with an enhanced AP capability (compared to regular ball ammo), the steel penetrator was intended to defeat the body armor seen worn by Warsaw Pact forces (at that time).

SO, it has BOTH steel and lead in the core. Originally using reasonable judgement, it was not classified as AP, because the core was mostly lead, and it wasn't pistol ammunition.

Later, some bright fellow at the ATF decides that since there are now some "handguns" made for it, and the steel insert is enough to make it AP, so it is now "armor piercing handgun ammunition"

When this proposed change was put up for public comment, the debate began.

Note that in 1986 ATF specifically exempted M855 and in 1992 .30-06 M2AP because of their sporting use and the fact that there were few if any handguns using that ammunition.

Exempted, because at the time, M855 did not meet the requirement for AP rifle ammo, and was not considered "pistol" ammo. I don't think "sporting use" entered into the decision, at all.

I am unaware of any change exempting .30-06 AP ammunition. It is the very definition of AP, has no "sporting use", its even called Armor Piercing and always has been! As far as I know, you can't buy any, sell any, trade any or even legally give it away, other than to a licensed dealer.

As loaded ammunition. AP bullets (pulled from loaded ammo) are not restricted, (at the Fed level) and you can buy as many as your state allows.

Other than as an example of over reach by changing their interpretation of already establish definitions, why are we even talking about this??

 

[dogtown tom]

44 AMP .....I am unaware of any change exempting .30-06 AP ammunition. It is the very definition of AP, has no "sporting use", its even called Armor Piercing and always has been! As far as I know, you can't buy any, sell any, trade any or even legally give it away, other than to a licensed dealer.

Sigh.
You keep calling it an arbitrary decision, yet refuse to read the ATF's explanation of why they considered M855 armor piercing and why it (and .30-06 M2AP) were exempted in 1986 and 1992 respectively.

I posted the link, but I can't make you read it.