Decomposing the Proposed M855 Ammunition Ban

I very recently engaged in a spirited discussion with a couple of colleagues regarding the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (BATFE) recent memorandum on banning the 5.56mm M855 (and SS109) rifle ammunition, commonly referred to as “green tips,” that naturally spiraled into a broader discussion about gun control policies, goals, and expectations in general. One of these colleagues noted that the “BATFE says that since the bullets can be used in semi-automatic handguns they pose a threat to police and must be banned from production, sale and use,” and offered that he failed to see how that could be a bad thing.

On its surface this seems like a fairly straightforward and fair point, and I have no doubt as to the sincerity and good intentions of this individual’s immediate amiability to the proposed ban, but as I made a case then for why this approach is so troubling to a free society I mirror that case below to demonstrate its broader implications.

The Rule of Law

As I described in recent letters to my congressional representatives, the Constitution assigns absolutely zero lawmaking authority to the Executive nor does it grant Congress any power to delegate legislative authority to the other branches of the federal government. There is a very purposeful reason for this, of course, and that is to ensure laws in this federal republic derive their legitimacy from constitutional propriety balanced with the will of the people (and formerly the many States) via their direct representatives. Obviously, unelected administration and/or judicial officials are not direct representatives of the people. For the Executive to assume such power, and particularly in the face of congressional inactivity on the matter, presents a deeply troublesome impact to basic constitutional law and order that goes well beyond simple firearms-related issues. In short, this presents a mockery of constitutional federalism, ignores the explicit protections for individual (and States’) rights contained therein, and effectively converts the nation from a just rule of law to a might makes right rule of man.

Of course, no actions, behaviors, or choices go insulated from naturally occurring consequences, and I posit that unity, harmony, and general social rest are not among the likely outcomes from such an unlawful environment, regardless of the specific context. Corruption of law and order on this scale and to this magnitude inevitably breeds further such usurpations all the way down the line to the “front end” interface of general government to the citizenry, as one police officer anecdotally points out: “Obama has decimated the friggin’ Constitution, so I don’t give a damn. Because if he doesn’t follow the Constitution we don’t have to.” One can easily enough see just how untenable such an environment is to law and order, yet this is the social and political environment that one inherently courts when seeking to violently enforce different standards for different classes of people, those being the citizenry and the state (but more on that in a bit).

Beyond its abstract effects on constitutional governance and its generally broad effects on the Second Amendment, this policy also distinctly contradicts the actual verbiage of United States Code with specific respect to armor piercing ammunition. As BATFE references in its proposal memorandum:

18 USC 921(a)(17)(B) provides:

(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 (emphasis added).

The 5.56mm M855 round in question – or indeed, any 5.56mm or other tenured rifle round for that matter – certainly “may be used in a handgun,” but it is not “constructed entirely” of the listed materials, as it possesses a mostly lead core. Thus, the round does not meet criteria (i) as it fails to meet both definitional attributes. Further, the round is clearly not “designed and intended for use in a handgun,” as it has been designed and intended solely for rifles since at least 1963, long before AR-style pistols became a “thing” with American sportsmen. BATFE acknowledges as much in its memorandum, stating “the firearm industry has developed commercially available handguns designed to use conventional rifle ammunition. This ammunition meets the content requirement of the definition [an incorrect statement, as previously debunked], but previously was not classified as ‘armor piercing’ under the statue because there were no handguns that could ‘use’ it” (emphasis added).

M855 composition

M855 “green tip” on left, showing a distinct lead core behind a steel tip (Source: AmericanRifleman.org).

The round also does not possess a jacket – that is, the outer copper portion of the slug itself – that weighs anywhere close to 25% of its overall weight. Therefore, the M855 fails to satisfy the two attributes of criteria (ii) as well. In toto, it is thusly clear that the M855 round was erroneously exempted from the armor piercing standard of 18 USC in 1986, insofar as the law should have never been applied to this round in the first place. BATFE is currently attempting to “cherry pick” 18 USC by ignoring the very relevant and important definitional word “and” in criteria (i).

There really is no way around it – the BATFE is, at a minimum, illegally “interpreting” the M855 round as armor piercing in direct contradiction to referenced and applicable United States Code definitions. But then, that is precisely what Big Government oligarchs do. This sort of lawlessness is not new and it certainly is not confined to simple infringements on the Second Amendment.

Basic Ethics

Besides its impact on the rule of law, this ban also presents considerable ethical problems. It is clear to anyone paying even the remotest attention to the incrementalist gun control approach in America that the real issue is not, and has never truly been, public safety but rather public disarmament. The reality is that the powers-that-be do not pursue disarmament as a means to an end, but rather as the end unto itself, as evidenced by the velocity and scope by which the administration is illegally pursuing such dishonest policies in the first two months of 2015 alone. Make no mistake: the Big Government oligarchs’ desire is to eliminate a free and armed populace in favor of a subjugated and entirely dependent one. The reasons for this should be fairly obvious: libido dominandi.

But that point aside for sake of the argument, ethics demand that gun control proponents at least be open and honest about this reality; let us have this debate with both genuine intent and goals on the table for all sides. Basic ethics demand we allow proposed policies to stand or fall on their own legal, ethical, and practical merits, vice disingenuous newspeak or subterfuge.

Other ethical considerations associated with the broader gun control issue are related to the inherent double-standard that gun control policies present with respect to the diminishment of individual rights and the subsequent reciprocal expansion of government power. The Organic Law of the United States – the democratic agreement that legally establishes the Unites States as a national entity – states very clearly the sole purpose of the government: “…to secure these [unalienable] rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” (emphasis added). Logically, one cannot “derive just powers” from those who do not justly possess those powers in the first place. Thusly, if a free people are denied the use and benefit of arms for any number of asserted reasons, then the state (i.e., its law enforcement agents) cannot justly possess/employ such implements either. The state derives its powers from the citizenry; the citizenry does not derive their rights from the state.

I posit that it is not coincidental that these anti-gun policies are being pursued in conjunction with the deeply offensive Department of Homeland Security’s (DHS) recent so-called “intelligence” assessment that clearly seeks to vilify – with no significant corroborating evidence or historically relevant trends – an American demographic that is commonly associated with strong support of the Second Amendment and general liberty in popular culture and the media. It is reasonable to presume that such nonsense is propagated with the actual intent to cultivate public sentiment to oppose people who value individual rights and actually understand what an ethically functioning government is supposed to look like (which is to say, how it is supposed to behave). This is not the first time that such people have been targeted for vilification either, despite the numerous Islamic terrorist incidences and general crime that have occurred between subsequent warnings1 – and it is a bipartisan vilification (the latter report was composed during the Republican Bush Administration; the former, obviously, on Democrat Obama’s watch).

Natural rights – those individual rights endowed upon us by God, or by virtue of our individual humanity if one prefers – far predate the existence of the United States government, indeed any government, and the protection of which are the very purpose for the state’s just existence. We possess these natural rights legitimately from birth as the masters of our own bodies, minds, souls, and enterprises. The only question is, whether we voluntarily surrender some or all of those rights – which can only be done legitimately by the individual who owns them, and solely with respect to his/her own rights – and/or whether they are forcibly infringed by another person, group, or organization. When non-state actors infringe these rights those acts are criminal; when the state does so it is fundamentally no less criminal, even if it claims “populist” support or other questionable authority in doing so. Being able to wield enough violence to get away with an act does not make that act just or ethical.

Practicality

This brings us to the practicality of the proposed ban in question. I have detailed before how ethics must always take precedence over practicality in a just and principled society. However, for sake of the argument, even this less important attribute does not hold water under enhanced scrutiny.

While the BATFE claims that the ban would “maximize [police] officer safety,” even some law enforcement officers (LEO) themselves express intuitive skepticism at the administration’s claim: “Criminals aren’t going to go out and buy a $1,000 AR pistol. As a police officer I’m not worried about AR pistols because you can see them. It’s the small gun in a guy’s hand you can’t see that kills you.”

On this point, owing to the specialized design involved and incredibly small overall market demand for such firearms, AR-style pistols are indeed relatively expensive compared to more common handguns and are considerably more unwieldy. I posit that AR-style pistols are frankly impractical as compared to their legally defined rifle “cousins” or traditional handguns. A quick search of GunBroker.com, my preferred source for generally well-priced firearms options, reveals prices for AR-style pistols in the range of $900 to upwards of $3,000. Compare this with a true handgun, the Glock 19, one of the most popular handguns in America, and one can easily find a new firearm for as low as about $450 (and there are Glock competitors that range considerably cheaper than that). This, compared with the aforementioned practicality and availability of handguns as compared with National Firearms Act of 1934 (NFA)-designated “pistols,” and the likelihood of criminals even marginally adopting the latter to wield against police officers is, at best, remote.

Bushmaster XM-15 91022

Typical AR-style “pistol,” as defined by the NFA; MSRP: $1,228.98 (Source: Bushmaster). This “pistol” is 26.75″ in length and weighs 5.5 lbs (unloaded).

Bushmaster 90197

A NFA-designated “short-barreled rifle” offered by the same manufacturer; MSRP: $1,406.53 (Source: Bushmaster). This rifle is 28″ in length and weighs 6.2 lbs (unloaded).

Glock 19The newest Glock 19 handgun variant, commonly used among law enforcement, law-abiding citizens, and criminals alike; MSRP: unavailable from manufacturer, this distributor’s price: $599.99 (Source: Glock). The handgun measures 7.3″ in length and weighs 1.9 lbs (loaded).

The BATFE understands well that the general public does not recognize the difference between a NFA-defined “pistol” and a handgun, and is banking on this ignorance. But as the preceding pictures make clear, there is virtually no substantive difference between a legally defined AR-style rifle and pistol. Only the absence of a shoulder stock marks this distinction, a nearly entirely cosmetic feature that offers no relevance whatever to how concealable the pistol is when compared to the rifle – which is to say, not very. Obviously, if concealment is a significant factor for the criminals that BATFE is purportedly concerned with, the “objective” analysis referenced throughout the executive memorandum suggests that the traditional handgun is by far a more desirable option.

Further, where is the evidence that proves that even a single M855 has ever been fired at a LEO from a pistol, let alone actually harmed one? In its memorandum, the agency offers exactly zero corroborating information, anecdotal, statistical, or otherwise, to substantiate its claims. For sake of the argument, “…the Attorney General must determine that a specific type of armor piercing projectile at issue is ‘primarily intended’ for use in shooting sports, and is therefore unlikely to be encountered by law enforcement officers on the streets” (emphasis added). Of course this round is “primarily intended” for sporting purposes, as is clearly evidenced by the deafening absence of LEOs “encountering” this rifle round “on the streets.” Indeed, USC states that “ATF nevertheless retains the discretion to deny any application for a ‘sporting purposes’ exemption if substantial evidence exists that the ammunition is not primarily intended for such purposes” (emphasis added). Where exactly is this “substantial evidence?”

When the only readily available handgun that can accept a cartridge containing the projectile is objectively and primarily sporting, it may reasonably be inferred that the likely use of that projectile will also be objectively and primarily sporting. 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. …Congress recognized that the threat to officer safety generally corresponds to the type of firearm police officers are most likely to encounter on the streets (emphasis added).

There is no reasonable way to infer that AR-style pistols are “designed to be carried and concealed,” as the preceding pictures clearly demonstrate. Nor is it reasonable to conclude that AR-style pistols, as consequence of their unwieldy, heavy, and non-concealable nature as compared to traditional handguns, a “type of firearm police officers are most likely to encounter on the streets.” BATFE is erroneously, and I believe purposefully, applying the standard of criteria in this case. When BATFE considered the “single-shot handguns” exemption, the agency noted that they are “generally large, heavy handguns used for traditional sporting purposes, such as target shooting and hunting” (emphasis added). This rationale identically applies to an AR-type pistol, which is far heavier and bulkier than traditional handguns and is equally traditionally employed for sporting purposes. By this standard, then, clearly traditionally understood handguns are far more concealable than NFA-designated “pistols” under this understanding, and thus objectively the more likely choice of LEO-threatening criminals “on the street.”

It seems clear to me that the BTAFE has, at best, formulated a solution that is looking for a problem. At worst, however, this policy approach could very easily lead to bans on all rifle ammunition, which is arguably the real underlying intent. The fact of the matter is that any rifle caliber more powerful than a .22 rimfire can penetrate so-called “soft” body armor, that which is commonly issued to American LEOs. Nearly all practical rifle calibers can be chambered into NFA-designated pistols nowadays as well, and given the arbitrary and demonstrably cherry-picked manner in which BATFE is willing to apply 18 USC to suit its ends, the logical conclusion here is that all readily available rifle ammunition is threatened, effectively rendering the right to keep and bear at least rifle arms thoroughly infringed.

Unintended (?) Consequences

This proposal effectively eliminates all rifle round compositions other than those made primarily of lead (which is questionable and ironic, given that M855 itself is mostly composed of lead). This is somewhat acknowledged by BATFE itself in the memorandum:

ATF understands that one of the primary factors is the increased pressure on the ammunition industry to produce suitable hunting alternatives to lead ammunition. The widespread use of lead ammunition for hunting has been linked to lead contamination in certain species that consume carrion and “gut piles” containing remnants of lead projectiles.

As I pointed out in the aforementioned letter to my representatives, I have no doubt that the Environmental Protection Agency (EPA) (or some other administrative agency/official) will eventually ban lead ammunition for alleged environmental reasons2, similarly to how California has done already, and this will be particularly effective as a Second Amendment infringement if the BATFE ban on rifle ammunition stands or, as I expect it to, grows.

Also, as M855 is one of the most prolific and subsequently least expensive small arms ammunition available to the public, such a ban naturally disrupts established supply and demand relationships and drives the price of rifle ammunition in general, and 5.56mm in particular, ever-upwards. Some colleagues have argued to me that this proposed ban (and other policies like it) is coming at the surreptitious behest of ammunition manufacturers to drum up per-unit profitability. That may be the case. More likely, I think in this case at least, the administration is seeking to make weapons as useless as possible via a roundabout method, since banning guns outright has proven to be a political non-starter in recent decades. Either way, this ban results in deeply infringing consequences that present serious rule of law and ethical problems and fails to appreciably achieve the at least publicly stated practical goals.

 

 

 

1 The assessment reportedly cites 24 violent incidences involving such profiled “Right-wing” individuals since 2010, but does not clarify how these incidents actually invoke terrorism, which is by definition planned and executed activities with a defined goal to influence political, social, or ideological change (without a stated goal, it’s not terrorism – which is to say, violence meant to influence behavior through fear – but rather basic run-of-the-mill criminality). “The Homeland Security report predicts that most sovereign citizen violence in 2015 will occur during routine law enforcement encounters at a suspect’s home, during enforcement stops and at government offices” (emphasis added). To be fair, the report is, at the time of this writing, not officially available to the public and there is at least some suggestion that the media is overblowing the assessment’s findings (more research is certainly warranted here). Not that incidences of unjustified violence are defendable, but how exactly are these any different from the hundreds of other violent encounters that police encounter for entirely different reasons, such as drugs, mental illness, and/or just plain old random evil? Why do liberty movements/supporters get painted with the brush of “terrorism” over an exceedingly small number of incidents in the big picture, when “regular” criminals do not? Why do reported “Left-wing” incidences of violence not make the “cut” for terrorism under this “standard?” I leave it to the reader to draw his/her own conclusions on this dynamic.

2 I have since learned that the federal courts have ruled correctly that the EPA lacks legal authority to regulate ammunition, but this will not likely stop the lawlessness from proliferating in some fashion or another.

 

UPDATE (5 March 2015): The BATFE’s claims that this proposed ammunition ban will enhance police safety is so ridiculous on its merits that even an executive with the nation’s largest police organization has pointed out its nature as a solution looking for a problem. The executive director of the Fraternal Order of Police’s Washington office stated that “any ammunition is of concern to police in the wrong hands, but this specific round has historically not posed a law enforcement problem” and “is not typically used against law enforcement” (emphasis added). But we all know what is really going on here…

UPDATE (8 March 2015): No surprise here, but so much for all that guff about transparency nonetheless from arguably the least transparent administration in United States history. It now appears that, despite BATFE’s published claims of accepting and reviewing public comments for 30 days, the agency already removed the (illegal) exemption for M855 ammunition in January, roughly a month before issuing the proposal memorandum in question. This is reportedly a possible violation of the Administrative Procedure Act, not to mention the illegality of the exemption/ban itself pursuant to 18 USC and the Constitution (as discussed ad nauseam above).

The BATFE has subsequently issued a press release indicating that the original 10-year January report banning the popular rifle round was a “publishing error,” but that is only a credible excuse if considerable historical trends did not exist suggesting that the government generally, and this administration in particular, does not routinely operate within its own laws.

UPDATE (10 March 2015): In an admittedly surprise move (at least for me), the BATFE today announced via press release that it “will not at this time seek to issue a final framework” for banning the M855 and/or SS109 rifle ammunition (emphasis added). This certainly counts as a victory for pro-Second Amendment types, constitutionalists, and general freedom-loving Americans but it would be quite foolish to think this is a dead issue going forward.

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