Friday, March 19, 2004

As Say Uncle & Geek With A .45 have already mentioned, the Brady Campaign to Prevent Self Defense Gun Violence along with the Dozen Million Mom March has filed a lawsuit against the Attorney General & the BATF.

In essence the lawsuit boils down to this: because the ATF & by extension the AG have allowed manufacturers to replace &/or repair pre- "assault ban" firearms they have thus allowed new manufacture in "assault weapons" & have violated the ban.

From the Brady Campaign's press release:

"The documents obtained through FOIA included private correspondence between ATF and Bushmaster Firearms of Windham, Maine in which ATF repeatedly gave Bushmaster permission to manufacture new "receivers" to replace damaged receivers for semiautomatic assault weapons that were possessed before the Assault Weapon Act went into effect in 1994 and thus were protected by the Act's 'grandfather' clause."

Now if you follow the link in the Brady Campaign's press release you'll note (as Geek With a .45 so aptly pointed out) that the correspondence in question occurred in 1996 & 1997. That would mean that Reno would have been the Ag at the time - not Ashcroft. Lord knows I'm not happy with our current AG but it'd have been much more appropriate if they dragged Reno's name into the suit since this happened under her watch.

& the above paragraph is merely a non-relevant aside, as nothing illegal was done! There have been procedures in place since unique serial numbers were required on firearms to deal with replacing damaged firearms. It's simply a way of repairing &/or replacing a firearm while maintaining records required by law.

Now firearms will perhaps always contain a unique serial number. This is as much for inventory control on the part of the company as anything. If all federal firearms laws were wiped off the books tomorrow (hey - a guy can dream can't he?) manufacturers would still stamp a serial number on some main component of the firearm just so they can keep track of production, sales, & other accounting concerns.

But the practice decried here by the Brady Campaign is simply a way of doing business in firearms that is mandated by federal law: if a damaged receiver is replaced then it must be replaced with a receiver that contains the serial number of the original, damaged receiver (or for some reason barring that much paperwork must be filled out & approval granted to use a different serial number).

I must stress that the damaged receiver is not used again in manufacturing. So it's not like a person trades in one receiver for a new one & the gun manufacturer turns around & sells the damaged receiver again. It's an exchange which does not add to the number of pre-ban "assault weapons" currently on the market.

"When Congress 'grandfathered' assault weapons legally possessed when the assault weapon ban was passed, it expected that over time the number of grandfathered assault weapons in circulation would gradually decline, as the guns became nonfunctional due to wear and tear. According to the lawsuit, the Justice Department's enforcement policy ensures, instead, that thousands of grandfathered assault weapons will remain functional into the foreseeable future. At the time the statute was enacted in 1994, ATF estimated there were approximately two million assault weapons in circulation."

Note the scare quotes around grandfathered.

But here's the underlying reason why the Brady campaign filed the suit: it hoped that attrition would reduce the number of grandfathered "assault weapons". When they discovered that it was perfectly legal to replace a pre-ban receiver, they started to have visions of loopholes dance in their heads & did what they usually do when the legislation they demanded fails to ban each & every firearm in civilian possession: they take it to court.

Now if it was the intent of Congress to not allow for the repair &/or replacement of the grandfathered "assault weapons" then I would assume that someone would have introduced language in the "assault weapons" ban to that effect. But considering that they didn't & that the ban was destined from the outset to expire in ten years I'd have to say that Congress did not intend to prevent replacement of worn or damaged pre-ban receivers.

& this makes me wonder how many bank robbers, gang bangers & other people with harmful, criminal intent are sending in their damaged pre-ban receivers to the gun manufacturers to be replaced? After all the whole premise of the Brady Campaign is that these pre-ban "assault weapons" are used extensively by criminals to gun down innocent citizens & cops alike, so do any of you know if the Cryps or any other criminal organization is sending in their pre-ban AR-15's because they're shooting them so much that the receiver's are wearing out? I'd imagine worn &/or damaged parts would happen much more frequently on the full auto firearms they got through the black market, but perhaps the Brady Campaign has more info on this than I do.

The fact of the matter is that firearms that are built & designed properly & cared for appropriately do not wear out major components in anything close to a short amount of time. Barring neglect &/or misuse (using improper ammo or inadequate maintenance) a firearm that was built when your grandparents were youngin's will still perform as designed today. Just off the top of my head I can point to two firearms that I own as examples of this: one was made in 1917 & the other in 1943. They both fire cartridges far more powerful than the typical "assault weapon"; both have been used in war (which is usually a bit harsher on a firearm - or any piece of machinery - than monthly trips to the local range & the occasional hunt) & both still put 5 shots into a space less than two inches at 100 yards. & one of them is a semi-automatic which functions identically to most of the banned “assault weapons”.

So for Congress to assume that a firearm manufactured a decade or two before the ban would cease to be operative prior to the expiration of the ban (again - ten years from enactment) they would have had to have less knowledge about metallurgy & firearms design than the average 16 year old in rural North Carolina. (This is purely anecdotal but when I was growing up in NC I heard many an adult tell their kids that if they took care of their rifles that they’d be able to pass them on to their children. Many of the rifles in question were passed on by the grandparent to the father to the son.)

So again, the practice of replacing worn &/or damaged receivers does not add to the number of "assault weapons" available on the market & it cannot be reasonably said that Congress intended in the space of ten years for the number of grandfathered firearms to be reduced through normal wear & tear.

Now would you like to know what type of person does require a periodic replacement of a receiver on an AR-15 type firearm? Competitive shooters. The AR-15 style firearms (which are mainly what Bushmaster manufactures) are by far the most popular type of firearm found in High Power matches. High Power matches have a few variations, but the mainstay is the Service Rifle competition. That particular discipline is limited to using rifles identical in form & function to rifles the U.S. military uses (with exceptions to cover civilian versions of military weapons). I'm a bit old fashioned as I shoot the M1 Garand in these matches. A few others still use the M1A (which is the semi-automatic version of the M14). But most people use an AR-15 type rifle. The only differences between the AR-15 used in these matches & the M16 issued by Uncle Sam are that the AR-15’s are semi-automatic only & since 1994 can be used in post-"assault weapons" ban configuration (i.e. not having a bayonet lug or flash hider is permissible). Other than making it possible to compete with firearms that don’t have certain banned features the rules of Service Rifle matches dictate that the firearm be identical to the firearms issued by the military.

Now depending upon where you live the season for High Power Rifle can last from 6 months to 9 months. Here in Colorado there are 3 clubs that hold High Power Matches. In January, February & March only one club holds matches & that's one match per month. Likewise that same club has a monthly match into November whereas the other clubs usually stop having matches in September or October. But let's say 6 months have 3 clubs holding one match per month, with one club holding 4 other matches in 4 other months. That's 22 matches per year excluding state, regional or national championships. Each match consists of 80 shots being fired for record, with the possibility of 8 rounds fired to adjust your sights. 88 rounds x 22 matches = 1936 rounds fired in matches alone. Double that to account for practice & we arrive at 3872 rounds fired per year. Over 5 years that'd be 19,360 rounds & over a decade it'd equate to 38,720 rounds fired.

Now some people won't fire that many rounds through the same firearm (either because they use different firearms for different matches or they don't compete in all available matches) but then again some people will fire many more rounds than that. Now if you're serious about competing you'll change the barrel every 6,000 to 8,000 rounds or so (sometimes more often or less often than that depending upon the level of accuracy you expect). So let's say you change the barrel out at the 8,000 round mark. That'd mean you'd be close to buying your 5th barrel in a ten year period of competing. Now to be honest I do not know what the typical AR-15 type receiver is capable of withstanding in terms of rounds fired through it. But I'd say the possibility of a receiver becoming worn through almost 40,000 rounds & 4 barrel changes in a decade is not unreasonable (of course if any AR-15 shooters wish to correct me I'd appreciate it). & it is possible to damage the receiver during a barrel change (not very likely, but it is possible), so perhaps in much less time a receiver replacement or repair would be necessary.

All this is to demonstrate that those with the most potential for having a damaged or worn receiver (barring a manufacturing defect of course) are competition shooters. The very same "sportsmen" that gun control groups such as the Brady Campaign claim to not be the targets of their disarmament efforts.

BTW, have y'all forgotten that the "assault weapons" ban has a name that immediately screams of hypocrisy? Its title as a bill was The Public Safety and Recreational Firearms Use Protection Act of 1994. Funny isn't it how the main use for the most popular "assault weapon" is in legitimate sporting competition. High Power matches have been around since the early 1900's & an act of Congress created the first national championships in the early 1900's. Its purpose (then as now) was to encourage the practice of marksmanship with rifles & pistols identical to those issued by the U.S. armed forces. Yet in 1994 they banned the new manufacture & sale of the AR-15 because it had a bayonet lug, flash hider, pistol grip & could accept a magazine with a capacity over ten rounds. Never mind the rules of a 90+ year old sport had to be altered to accommodate this new law & the main affect it had was on making the people who participated in this sport spend more money on pre-ban rifles or make adjustments to their technique (as removing the bayonet lug & flash hider, while minor things by themselves, do have an effect on the point of impact as it changes the harmonics of the barrel), they figured that having something in the title about protection sports shooting would make everything okay.

In any event, here's a copy of the complaint the Brady Campaign filed. In it you'll find the usual allegations about "assault weapons" being the weapon of choice of criminals & their mere presence (the "assault weapons" - not the criminals) increasing the danger for everyone, especially cops. There is an anecdote about a cop in Detroit who was killed while wearing a bullet proof vest, but they did have the decency to point out that the projectiles entered gaps in his bullet proof vest (although odds are his vest wasn't rated to stop rifle fire, so if a rifle was used the point of impact wouldn't have mattered).

Aside from the statements about various members of the Brady campaign that live in bad neighborhoods & have to lock their doors at night as well as supervise their children while they play (all because of "assault weapons") there is one factual error I must point out.

From the complaint:

"24. The Assault Weapons Act makes it unlawful “to manufacture, transfer or possess a
semiautomatic assault weapon” or to transfer or possess a “large capacity ammunition feeding
device.” 18 U.S.C. § 922(v)(1)."


Now this is taken out of context. While in & of itself it is factual its meaning is misconstrued if one fails to include 18 U.S.C. § 922(v)(2) which states:

"Paragraph (1) shall not apply to the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed under Federal law on the date of the enactment of this subsection."

& further in 18 U.S.C. § 922(v)(3)(A)

"any of the firearms, or replicas or duplicates of the firearms, specified in Appendix A to this section, as such firearms were manufactured on October 1, 1993;"

& further if we look in 18 U.S.C. § 922(w) we will find the following:

"(1) Except as provided in paragraph (2), it shall be unlawful for a person to transfer or possess a large capacity ammunition feeding device.

(2) Paragraph (1) shall not apply to the possession or transfer of any large capacity ammunition feeding device otherwise lawfully possessed on or before the date of the enactment of this subsection."


But if you doubt me you're more than welcome - nay, you're encouraged to look at 18 U.S.C. § 922 for yourself. Just scroll down to the appropriate sections.

Now the complaint does finally make this clear at Item 29 & I would hope any sitting judge would be able to make the connection between Item 29 & Item 24 but it could have been written a little more clearly: rather than reading item 24 & thinking the "assault weapons" ban dealt with possession only to find out at Item 29 that the ban was solely on new manufacture for the non-LE0 market (yes there are exemptions for retired LEO's in the "assault weapons" ban - you'll find them at 18 U.S.C. § 922(v)(4)(c) & 18 U.S.C. § 922(w)(3)(c) respectively) it could have been included in the same item to make the law clear, both for the convenience of judges who aren't familiar with the law in question & for the laypeople who might read the complaint.

Now further in the complaint it reveals the exchange between the ATF & the Brady Campaign. The Brady Campaign contacted the ATF in 2003 & told them they must not only stop the practice of allowing damaged receivers to be replaced by the manufacturer, but must order all the replacement receivers made & distributed since 1994 be deemed contraband & confiscated.

What follows is more or less the ATF saying they won't do that & they're complying with the law & the Brady Campaign saying that they aren't. But here's the gist of the Brady Campaign's argument with the ATF:

They feel that since a receiver made after the effective date is an "assault weapon" all by itself then the ATF is allowing the law to be violated.

Now the ATF counters with the idea that a receiver in & of itself is not an "assault weapon". It's only a completed rifle that qualifies as an "assault weapon". Now if receivers were considered "assault weapons" all by their lonesome, then no AR-15 type rifles or AK-47 type rifles or Ruger 10/22's would have been made since 1994 as all three examples can be easily made into an "assault weapon" by adding certain features (such as a flash hider & folding stock)

Now if we look at 18 U.S.C. § 921(a)(30) we'll find the definition of "assault weapon" as it is to be applied to 18 U.S.C. § 922(v).

18 U.S.C. § 921(a)(30)(A)(i) through (ix) lists specific firearms by name. Among the notables are the Colt AR-15 as well as the Steyr AUG & Fabrique National FN/FAL. It says copies or duplicates of the named firearms are included. But what's lacking is a description of what is considered a copy or a duplicate. One would assume that if FN Herstal manufactured an FN/FAL but called it Model X1094 it would be considered a copy or duplicate. So how is it that AR-15 or FN/FAL type rifles are being manufactured legally?

In 18 U.S.C. § 921(a)(30)(B) we find a description of proscribed items:

"a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of -
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a bayonet mount;
(iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and
(v) a grenade launcher; "


Now if they manufactured an FN/FAL but made some significant change, such as omitting the flash hider, bayonet lug & giving it a thumbhole stock then you couldn't really call it a copy or a duplicate since it differs enough from the original to be considered a variant based on the original, but not a copy or duplicate thereof. & since it doesn't include the features specified in 18 U.S.C. § 921(a)(30)(B) we can make a reasonable inference that the objections to the rifles specified in 18 U.S.C. § 921(a)(30)(A) were that they possessed the specifically mentioned features. Since the post-ban rifles are not duplicates or copies, but variations of the named firearms, & since they do no contain the objectionable features they simply don't violate the law.

& the key thing is 18 U.S.C. § 921(a)(30)(B) since it mentions features which are common to all the rifles mentioned in 18 U.S.C. § 921(a)(30)(A).

So a post ban receiver could be used to make either a post ban "assault weapon" or a post-ban firearm. The law simply does not confuse potential use with actual use in this case, therefore it would be erroneous to say the law prevents the manufacture of any receiver which could be used to assemble a post-ban "assault weapon".

To further illustrate this point anyone who is eligible to purchase a firearm could go to Wal-Mart & spend $160 on a Ruger 10/22. Through a little judicious shopping one could then spend $80 or so for a folding stock for a Ruger 10/22. Mating the Ruger 10/22 to a folding stock would be creating a post-ban "assault weapon" & thus violating 18 U.S.C. § 922(v) as defined by 18 U.S.C. § 921(a)(30)(B). So to follow the Brady Campaign's logic the ATF would be forced to deem all Ruger 10/22 receiver's as contraband & start confiscating them since the receivers are capable of being used in an “assault weapon” & are not marked in accordance with 18 U.S.C. § 923(i) which reads in its relevant part:

"...The serial number of any semiautomatic assault weapon manufactured after the date of the enactment of this sentence shall clearly show the date on which the weapon was manufactured..."

I just checked mine & Ruger does not have the date stamped on the receiver, even though according to the Brady Campaign's argument my Ruger 10/22 is an "assault weapon" since the receiver has the potential to be assembled into a complete firearm that violates the ban.

Only rifles that are assembled can qualify as an "assault weapon". Further if you were to remove the features that made a rifle into an "assault weapon" then you would clearly not have an "assault weapon" as defined by 18 U.S.C. § 921(a)(30)(B).

Now another flaw with the Brady Campaign's logic is that all the replaced receivers will be used for assembling an "assault weapon". For example let's look at the AR-15 type rifles which Bushmaster primarily manufactures.

By their design they come with a pistol grip & the ability to accept a detachable magazine capable of holding more than ten rounds so one more proscribed feature would make this into an "assault weapon". But let's assume that the owner of said rifle is a High Power Rifle shooter. Let's further assume that he has been using custom made barrels which do no utilize a flash hider or a bayonet lug. & since he's shooting in competitions the odds of him having a collapsible or folding stock are nil (I believe they're not legal in match use according to the rules of the game, but I could be mistaken). Now despite his having a pre-ban receiver that was originally used on an "assault weapon" his replacement receiver may in fact be used to assemble a firearm that would not violate the "assault weapons" ban even if he had used a brand new receiver instead of a pre-ban receiver. He merely has the option of assembling it as an "assault weapon". So it's entirely possible that the bulk of these replaced receivers are being used to facilitate the continued use of firearms that do not meet the definition of an “assault weapon”.

The Brady Campaign's argument, if taken to its logical conclusion, would cause virtually every semi-automatic firearm manufactured since 1994 to be deemed contraband & become subject to confiscation. Hell, if we apply this reasoning across the board then ever firearm ever made (excluding muzzle loading firearms) would be in violation of the NFA of ’34 as they could be made to have a barrel less than 16” (or less than 18” for shotguns); be fitted with a sound suppressor or in the case of handguns be fitted with a detachable shoulder stock. Now this result wouldn’t bother the Brady Campaign as it would expedite their main goal which is to disarm everyone except those who work for the government, but I guaran-damn-teeya it would not be a popular concept amongst most Americans.

Now at Item 64 we find the following:

"Despite the fact that the Assault Weapons Act defines a frame or receiver as the 'firearm' for purposes of the ban, see 18 U.S.C. § 921(a)(3)(B), ATF stated in its October 30, 2003, letter that '[t]he definition of a SAW necessarily involves a complete firearm, with specified parts. Until the frame or receiver is assembled with all the component parts necessary to make a complete weapon, it cannot be determined whether the weapon is a SAW or a sporting firearm.”

Now 18 U.S.C. § 921(a)(3) has the following definitions:

"(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
(B) the frame or receiver of any such weapon; "


But those definitions were in 18 U.S.C. § 921 long before the “assault weapons” ban was drafted. So it is incorrect to say that the “assault weapons” ban defined a receiver as a firearm since the definition of “firearm” already existed in 18 U.S.C. § 921. The reason a receiver was defined as a firearm had nothing to do with the “assault weapons” ban; it was simply to clarify which part of a firearm would carry the serial number & be subject to (unconstitutional) federal regulations such as the NFA of ’34 & the GCA of ’68 to name a few.

As I pointed out earlier the Brady Campaign is using flawed logic to claim that a receiver by itself constitutes an “assault weapon” since a receiver that can be used to make an “assault weapon” can be made into a firearm that does not fit the definition of “assault weapon” as found in 18 U.S.C. § 921(a)(30)(B).

The Brady Campaign doesn’t seem to understand that a receiver manufactured before the effective date of the “assault weapons” ban can be made into an “assault weapon” or a firearm that isn’t considered an “assault weapon”, just as they can’t seem to understand a receiver made after the effective date of the “assault weapons” ban cannot legally be made into an “assault weapon” for civilian use. They seem to be reasoning that since receivers are identified as “pre” or “post” ban that this supports their theory that the receiver itself is subject to the “assault weapons” ban no matter what type of firearm it is actually assembled into. Or at least that’s what their arguments would have us believe.

At Item 70 the Brady Campaign alleges that the ATF violated the law by allowing Bushmaster to issue replacement receivers that did not have the exact same serial number as the damaged receiver. But if we look at 27 C.F.R. § 478.22 we find that there are alternative & emergency measures which may be applied for & granted under certain circumstances when dealing with administrative issues. So for their claim to be valid in this regard they’d have to demonstrate exactly how the variance that was granted Bushmaster was not in accord with 27 C.F.R. § 478.22(a) which states:

"(1) Good cause is shown for the use of the alternate method or procedure;
(2) The alternate method or procedure is within the purpose of, and consistent with the effect intended by, the specifically prescribed method or procedure and that the alternate method or procedure is substantially equivalent to that specifically prescribed method or procedure; and
(3) The alternate method or procedure will not be contrary to any provision of law and will not result in an increase in cost to the Government or hinder the effective administration of this part. Where the licensee desires to employ an alternate method or procedure, a written application shall be submitted to the appropriate Director of Industry Operations, for transmittal to the Director. The application shall specifically describe the proposed alternate method or procedure and shall set forth the reasons for it. Alternate methods or procedures may not be employed until the application is approved by the Director. The licensee shall, during the period of authorization of an alternate method or procedure, comply with the terms of the approved application. Authorization of any alternate method or procedure may be withdrawn whenever, in the judgment of the Director, the effective administration of this part is hindered by the continuation of the authorization."


They do not seem to make any case other than the ATF granted variances from the usual procedure therefore it violated the law.

In Item 76 they cite 27 C.F.R. § 478.92 as having been violated as Bushmaster was not told they had to stamp the replacement receivers with either the date of manufacture or “Restricted Law Enforcement/Government Use Only” or “For Export Only”. But if we look at 27 C.F.R. § 478.92(a)(3) we find the following:

"Special markings for semiautomatic assault weapons, effective
July 5, 1995. In the case of any semiautomatic assault weapon manufactured after September 13, 1994, you must mark the frame or receiver ``RESTRICTED LAW ENFORCEMENT/GOVERNMENT USE ONLY'' or, in the case of weapons manufactured for export, ``FOR EXPORT ONLY,'' in a manner not susceptible of being readily obliterated, altered, or removed. For weapons manufactured or imported on and after January 30, 2002, the engraving, casting, or stamping (impressing) of the special markings prescribed in this paragraph (a)(3) must be to a minimum depth of .003 inch."


Please note that it speaks of marking the receiver when an “assault weapon” is made. Now if the receiver itself is an “assault weapon’ under the law then why would the regulations state that when an “assault weapon” is made the receiver must be stamped? Wouldn’t it have said that when a receiver is manufactured that is defined as an “assault weapon” it must be treated in the described manner? By implication the regulation itself differentiates between a receiver & an “assault weapon”.

But the most substantive rebuttal to the Brady Campaign’s argument concerning how the receiver is to be marked can be found in 27 C.F.R. § 478.92(a)(4)(i):

"Exceptions. (i) Alternate means of identification. The Director may authorize other means of identification upon receipt of a letter application from you, submitted in duplicate, showing that such other identification is reasonable and will not hinder the effective administration of this part."

If they would have just bothered reading the paragraph below the one they claimed was violated, they might have seen that it wasn’t violated as there is a provision that allows exceptions.

But I sincerely doubt that the Brady Campaign filed this due to a misreading of the law. Their complaint is simply an attempt to expand the scope of the “assault weapons” ban through the judiciary & I’m a firm believer in never attributing to ignorance what can be explained by malice.

The lawsuit filed by the Brady Campaign & the Dozen Million Mom March stand a fair chance of proceeding to trial if they can get it before the right judge. & filing in the District of Columbia won’t hurt the odds of that happening one bit.

Now I hope that this will be dismissed with prejudice as it’s based on some fairly obvious misreading of the law. Then again all of the gun control laws on the federal level are based upon blatant misunderstanding of the 2nd Amendment & few if any judges seem to recognize that. If this case did make it to trial & was presided over by a fair & competent judge I wouldn’t doubt for a minute that I could argue against it & win decisively even though I’m not a lawyer. But considering the difficulty in finding a fair & competent judge in that particular district (especially when it comes to firearms related issues) then I’d say that the case has a chance of being successful.

No comments: