Monday, January 23, 2012

Legal issues surrounding the 2010-2011 Ban on Proposed South Korean Transfers of M1 Rifles and Carbines to the US

The M1 Garand and M1 Carbine are WWII era rifles. For a history of these rifles, consult Wikipedia.  During the Korean War, the US provided these arms to South Korea.  In 2010, news reports emerged that the South Korean government sought to sell the M1s it still has to collectors in the US, but the efforts were blocked by the Obama administration.  Now, in 2011, reports are emerging that M1 Garands might be allowed in, but not the M1 Carbines.

Legal Questions:
  1. Exactly which governmental department of the "Obama administration" purports to have authority to make these rules?  Does it indeed have such authority?
  2. Do the statutes enabling the Civilian Marksmanship Program trump that agency's authority to prohibit import of these firearms?
  3. Who would have standing to challenge the agency action?

I have had a difficult time determining which government agency was responsible for the prohibition.  Most news reports refer vaguely to "the Obama administration."  Narrowing down the acting agency is important, if for no other reason in that it will aid in finding the relevant written rulings or letters.  One Foxnews report seems to say the Department of State is responsible, but that when pressed, the issue was deflected to ATF.  Using the "search" function on the US Department of State web site for the key word "garand" turned up no hits.  I am considering a Freedom of Information Act request to satisfy my curiosity on this point.

I have seem some websites suggest that the Garands were sent to Korea pursuant to the Lend Lease Act (the "LLA").  The text of the Lend Lease Act provides:
 SEC. 4. All contracts or agreements made for the disposition of any defense article or defense information pursuant to section 3 shall contain a clause by which the foreign government undertakes that it will not, without the consent of the President, transfer title to or possession of such defense article or defense information by gift, sale, or otherwise, or permit its use by anyone not an officer, employee, or agent of such foreign government.
This would suggest that if the LLA applies, even after all these years, then the consent of the President is required for S. Korea to transfer them.  Apparently, Congress left provision of such consent entirely up to the discretion of the President.  Thus, to the extent the President can delegate that authority to the State Department (I'm not sure he can, but I don't think that is a critical issue), it would seem the State Department's 2010 ban was kosher.

However, the legal story of the Garands may not end there.  In 1996 (yes, during the Clinton administration!) a law was passed that actually promoted the sale of Garands to civilians.  Specifically, Title 36 US Code Chapter 407 created the Civilian Marksmanship Program, a non-governmental non-profit corporation. Sub chapter II provides various functions for the CMP:
§ 40722. Functions

The functions of the Civilian Marksmanship Program are—
(1) to instruct citizens of the United States in marksmanship;
(2) to promote practice and safety in the use of firearms;
(3) to conduct competitions in the use of firearms and to award trophies, prizes, badges, and other insignia to competitors;
(4) to secure and account for firearms, ammunition, and other equipment for which the corporation is responsible;
(5) to issue, loan, or sell firearms, ammunition, repair parts, and other supplies under sections 40731 and 40732 of this title; and
(6) to procure necessary supplies and services to carry out the Program.
Long story short, the CMP is a great source for civilians to buy surplus Garands!  Any member of a CMP affiliated shooting club (subject to certain conditions) can order one and have it shipped directly to their home!  I know this because I am the proud owner of a CMP Garand!

But here is where things get interesting, there is another section which adds a wrinkle to the S. Korean Garands:

§ 40728A. Recovery of excess firearms, ammunition, and parts granted to foreign countries and transfer to corporation

(a) Authority to Recover.— The Secretary of the Army may recover from any country to which rifles, ammunition, repair parts, or other supplies described in section 40731 (a) of this title are furnished on a grant basis under the conditions imposed by section 505 of the Foreign Assistance Act of 1961 (22 U.S.C. 2314) any such rifles, ammunition, repair parts, or supplies that become excess to the needs of such country.
(b) Cost of Recovery.—
(1) Except as provided in paragraph (2), the cost of recovery of any rifles, ammunition, repair parts, or supplies under subsection (a) shall be treated as incremental direct costs incurred in providing logistical support to the corporation for which reimbursement shall be required as provided in section 40727 (a) of this title.
(2) The Secretary may require the corporation to pay costs of recovery described in paragraph (1) in advance of incurring such costs. Amounts so paid shall not be subject to the provisions of section 3302 of title 31, but shall be administered in accordance with the last sentence of section 40727 (a) of this title.
(c) Availability for Transfer to Corporation.— Any rifles, ammunition, repair parts, or supplies recovered under subsection (a) shall be available for transfer to the corporation in accordance with section 40728 of this title under such additional terms and conditions as the Secretary shall prescribe for purposes of this section.
So wait a minute...what exactly was the Foreign Assistance Act of 1961 (the "FAA"), and is it possible some of the S. Korean Garands were subject to it?  Well, unfortunately this glimmer of hope is quickly clouded by the text of the FAA, which is riddled with language similar to the LLA in that Presidential authority is required for transfer of the weapons.  This sort of raises the question, that given the fact that the Secretary of the Army reports to the President, what is the implication of Congress explicitly granting recovery powers to the Secretary of the Army?  Can the Secretary of the Army act independently, and even contradictory to Presidential orders, pursuant to the CMP statute?

Preliminary conclusions:
If the Garands were sent to S. Korea under the FAA or LLA, in either case Presidential consent is required for S. Korea to transfer them.  I am not well versed in agency law, but I doubt it is very significant if the State Department issues or withholds consent by virtue of delegation by the President to that department.  The CMP statute does not seem to remove the authority of the President with respect to items the CMP is responsible for selling, but also gives authority to the Secretary of the Army to recover Garands under the FAA.  So again, nothing un-kosher just yet.  The only interesting legal question then is what would happen if the President wanted to withhold consent of the S. Korean transfer of the Garands, but the Secretary of the Army wanted to transfer them to the CMP?  That I don't know, and it is a moot question until the Secretary of the Army actually tries.

Again, the disclaimer for the above analysis is the assumption that the Garands made it to S. Korea under the FAA or LLA.  There might also be some other laws governing not just the transfer of these rifles, but specifically a transfer to the US, which might implicate powers of the President or the State Department.  If they were simply sold outright to S. Korea, then their importation would probably fall within the purview of the Gun Control Act and the ATF.

In conclusion, the Obama administration is probably acting within its authority.  But in light of the CMP statute, Congress (pursuant to a law signed by Clinton) actively promotes putting both M1 Garands and M1 Carbines into the hands of US citizens.  The Obama administration's policy suggests his administration's decision to withhold consent of the S. Korean transfer is contrary to the will of the people.

Tuesday, January 17, 2012

Legality of Reloading Ammunition and Various Thoughts...

When I first began shooting competitively, mentors steered me towards rifles and pistols chambered in .22LR (LR = long rifle).  .22LR is a mild small caliber round ideal for target shooting, and the required round in many disciplines.  It is however, a round that is not reloaded, the spent brass is sent off to be recycled.  I believe this is because of the impracticality of re-priming rim fire cartridges, and also the relatively low cost of .22LR ammunition.

As I progressed to center fire firearms, reloading spent brass cases proved far more economical than purchasing factory ammunition.  Additionally, hand crafted ammunition can be of superior quality than mass produced ammunition, if done properly.  The reader is left to his or her own devices for further study of the reloading process.


p. 184

(H4) Is a person who reloads ammunition required to be licensed as a manufacturer?
Yes, if the person engages in the business of selling or distributing reloads for the purpose of  livelihood and profit. No, if the person reloads only for personal use.
[18 U.S.C. 922(a) (i) and 923(a), 27 CFR 478.41]

Interestingly, the GCA defines "ammunition" as (s.921(a)):
(A) The term “ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm. 
This implies that to commercially manufacture ammunition components, one would need to be licensed.  This raises some interesting questions.  For example, there is a new cartridge out, the .300 AAC in various specifications, which can be manufactured rather easily from existing .223 cases (an inexpensive case available in mass quantities) with minor cutting and shaping.  If one wanted to get into the business of mass-converting .223 brass into .300AAC brass, would a license be required?  What about bullet casters, who manufacture and sell only the lead bullets (aka "heads")?  In practice, does the ATF check or even care about these things?  And if so, why?

The policy reasons behind a statutory regime of licensing commercial manufacturers of ammunition is not entirely clear to me.  I do not believe the ATF has any responsibility or involvement in "certifying" or monitoring that manufactured ammunition is safe for use, analogous to the FDA with food and drugs. 

Thus, it seems to me as nothing more than a tax.  Especially so, because once sold by the manufacturer, there is no licensing or record keeping requirement of subsequent sellers (although this may not be the case for import/export or NFA regulated items):
p. 176
(A4) What kinds of ammunition are covered by the GCA?
Ammunition includes cartridge cases, primers, bullets or propellant powder designed for use in any firearm other than an antique firearm.  Items NOT covered include blank ammunition, tear gas  ammunition, pellets and nonmetallic shotgun hulls without primers.  Generally, no records are required for ammunition transactions. However, information about the disposition of armor piercing ammunition is required to be entered into a record by importers, manufacturers, and collectors.  A license is not required for dealers in ammunition only.
[18 U.S.C. 921(a)(17) and 922(b)(5), 27 CFR 478.11 and 478.125]
(B4) May an unlicensed person obtain ammunition from an out-of-State source?
Yes, provided he or she is not a person prohibited from possessing or receiving ammunition.  [18 U.S.C. 922(g) and (n)]

(F11) Is a license required to engage in the business of selling small arms ammunition?
No. A license is not required for a dealer in ammunition only, but a manufacturer or an importer of ammunition must be licensed.
[18 U.S.C. 922 (a)(1)(B)]
The fact that ATF licenses ammunition manufacturers, but does not necessarily regulate quality or safety, makes everything even more interesting from a legal and policy perspective.  The reloading process itself is very safe, I am sure more people are injured changing light bulbs than reloading ammunition.  And for the most part, the reloader assumes the risks associated with using the ammunition he makes.

But what about average, every day gun owners who purchase reloaded ammunition at gun shows or elsewhere?  I would imagine that the average citizen simply assumes that some federal regulatory body, probably ATF, holds manufacturers to some sort of quality control standards, like the FDA does for food and drugs.  Or in addition, that some sort of bond or insurance is secured in case the ammunition is defective and causes personal injury or property damage.  But since these assumptions are wrong, where does that leave us?  I guess this is one of the reasons that firearms manufacturers often include strict instructions in the manuals not to use reloaded ammunition, in an effort to limit their liability on the argument that their firearm's chamber ought to be able to handle the maximum possible pressure a cartridge could create, not just the SAAMI specification.  A hand loader might knowingly assume the risk of exceeding the SAAMI specification, but does the purchaser of reloaded ammunition necessarily know what they are getting?

I would not suggest that ATF get in the business of ammunition testing and certification, but what they could do is clearly inform the public that they do not do this, and perhaps require that all ammunition, reloaded or not,  be sold with a standard form disclaimer either printed on the box or inside the plastic baggie (as reloads are often packaged at gun shows) clearly stating that the ATF does not regulate  ammunition for safety.  I think as a matter of safety and consumer protection, that reloads need to be clearly labeled as such--a consumer deserves to know whether they are purchasing a particular manufacturer's factory loaded ammunition or reloads merely recycling that manufacturer's brass (although some manufacturers outsource their brass and it may not be head stamped with their name, often times the manufacturer and the head stamp are the same), which could confuse and mislead the consumer.

In "sophisticated" shooting circles, we all know that it is "buyer beware" when purchasing reloads.  But I've known several novice and infrequent shooters who bought reloads at gun shows without fully appreciating a) that they had bought reloads in the first instance, and b) the dangers in using ammunition over- or under-pressure.  To protect those people, I would not oppose some kind of warning regulations, similar to cigarette warnings.  In fact, ammo warnings make a heck of a lot more sense to me, because you're an idiot if you don't appreciate the dangers of smoking in today's world, but you're not an idiot if you are a gun owner who hasn't been educated as to the necessity of using properly pressured ammunition in your firearm.

Monday, January 16, 2012

Non-immigrant Alien Resident Purchase and Posession of Firearms - Hunting License Exception

Wikipedia gives a nice summary of the GCA:
The Gun Control Act of 1968 (GCA or GCA68), Pub.L. 90-618, 82 Stat. 1213, enacted October 22, 1968 by president Lyndon Johnson, is a federal law in the United States that broadly regulates the firearms industry and firearms owners. It primarily focuses on regulating interstate commerce in firearms by generally prohibiting interstate firearms transfers except among licensed manufacturers, dealers and importers.
The GCA is codified as Chapter 44 of Title 18 of the United States Code, and is Title I of the U.S. federal firearms laws. The National Firearms Act of 1934 (NFA) is Title II. Both GCA and NFA are enforced by the ATF.
Aliens are addressed in § 922. "Unlawful acts".  Specifically:
(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person— 
(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(g) It shall be unlawful for any person—
(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 
However, there are exceptions:
(y) Provisions Relating to Aliens Admitted Under Nonimmigrant Visas.—
(1) Definitions.— In this subsection—
(A) the term “alien” has the same meaning as in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(3)); and
(B) the term “nonimmigrant visa” has the same meaning as in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)).
(2) Exceptions.— Subsections (d)(5)(B), (g)(5)(B), and (s)(3)(B)(v)(II) do not apply to any alien who has been lawfully admitted to the United States under a nonimmigrant visa, if that alien is—
(A) admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;
ATF regulations also recognize the hunting permit exception:
§ 478.32   Prohibited shipment, transportation, possession, or receipt of firearms and ammunition by certain persons. (a) No person may ship or transport any firearm or ammunition in interstate or foreign commerce, or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, or possess any firearm or ammunition in or affecting commerce, who:
(5) Being an alien—
(i) Is illegally or unlawfully in the United States; or
(ii) Except as provided in paragraph (f) of this section, is a nonimmigrant alien: Provided, That the provisions of this paragraph (a)(5)(ii) do not apply to any nonimmigrant alien if that alien is-
(A) Admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;

§ 478.99   Certain prohibited sales or deliveries.
(c) Sales or deliveries to prohibited categories of persons. A licensed manufacturer, licensed importer, licensed dealer, or licensed collector shall not sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person:
(5) Is an alien illegally or unlawfully in the United States or, except as provided in §478.32(f), is a nonimmigrant alien: Provided, That the provisions of this paragraph (c)(5) do not apply to any nonimmigrant alien if that alien is—
(i) Admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;


§ 478.124   Firearms transaction record.
(3) After the transferee has executed the Form 4473, the licensee:
(i) Shall verify the identity of the transferee by examining the identification document (as defined in §478.11) presented, and shall note on the Form 4473 the type of identification used;
(ii) Shall, in the case of a transferee who is an alien legally in the United States, cause the transferee to present documentation establishing that the transferee is a resident of the State (as defined in §478.11) in which the licensee's business premises is located, and shall note on the form the documentation used. Examples of acceptable documentation include utility bills or a lease agreement which show that the transferee has resided in the State continuously for at least 90 days prior to the transfer of the firearm; and
(iii) Must, in the case of a transferee who is a nonimmigrant alien who states that he or she falls within an exception to, or has a waiver from, the nonimmigrant alien prohibition, have the transferee present applicable documentation establishing the exception or waiver, note on the Form 4473 the type of documentation provided, and attach a copy of the documentation to the Form 4473.

(R1) May nonimmigrant aliens legally in the United States purchase or possess firearms and ammunition while in the United States?
Nonimmigrant aliens generally are prohibited from possessing or receiving (purchasing) firearms and ammunition in the United States. There are exceptions to this general prohibition. The exceptions are as follows:
1. nonimmigrant aliens who possess a valid (unexpired) hunting license or permit lawfully issued by a State in the United States;
Significantly, even if a nonimmigrant alien falls within one of these exceptions, the nonimmigrant alien CANNOT purchase a firearm from a Federal firearms licensee (FFL) unless he or she (1) has an alien number or admission number from the Department of Homeland Security (formerly the Immigration and Naturalization Service) AND (2) can provide the FFL with documentation showing that he or she has resided in a State within the United States for 90 consecutive days immediately prior to the firearms transaction. [18 U.S.C. 922(g)(5)(b) and 922(y), 27 CFR 478.124, ATF Rul. 2004-1]

(R2) Typically, who are "nonimmigrant aliens?"
In large part, nonimmigrant aliensare persons traveling temporarily in the United States for business or pleasure, persons studying in the United States who maintain a foreign residence abroad, and certain foreign workers. Permanent resident aliens are NOT nonimmigrant aliens. Permanent resident aliens often are referred to as people with "green cards."
(R8) I am a nonimmigrant alien who has resided in Idaho for 1 year. I have a valid Montana hunting license. Can I use the Montana license as evidence that I fall within an exception to the nonimmigrant alien prohibition when I go to buy a gun from a dealer in Idaho?
Yes. A valid hunting license or permit from any State within the United States satisfies the hunting license exception to the nonimmigrant alien prohibition. The license does not have to be from the State where the nonimmigrant alien is purchasing the firearm. Please note, the transaction must comply with State and local laws.
(R9) I am a nonimmigrant alien who is on a month-long vacation in the United States. I have a hunting license and an admission number. Can I legally buy a firearm from a Federal firearms licensee (FFL) in the United States and take possession of it in the United States?
No. You cannot legally buy a firearm from an FFL and take possession of it in the U.S. because you have not resided in a State within the United States for 90 days.
I hope this serves as a good starting point for an attorney advising a non-immigrant alien resident.  As to the procedure to obtain a hunting license, of course this will vary on a state-by-state basis.  I would caution the alien to seek a license that is a "lifetime" license or infinitely renewable, because if the license expires, so does the exception.  I did not see any rules limiting the immigrant to "hunting"-type firearms only (i.e. rifles and shotguns), and as a practical matter, handguns are commonly used for hunting, although not as frequently as other arms.  And even when not specifically intended for game, handguns are often considered part of a hunter's "gear" to provide a quick defensive response to dangerous predators who pick up the scent of a hunter's kill--for example a hunter might carry a pistol to respond to (or scare away) wolves who become too curious about a deer he shot with a rifle.  The regulations do not suggest an actual intent or attempt to ever go hunting, but it might be advisable to do so and document the effort.  Also, I would do more research and possibly seek an ATF letter before a non-FFL would transfer to a known non-immigrant alien, even one possessing a valid hunting license.

What do I think of these laws?  First, let me say I have mixed thoughts on non-immigrant visas.  Take for example the H1B "special skills" work visa.  Nothing wrong with the US "draining brains" from other countries if we truly don't have the skills here.  As long as the situation is well policed, legal immigration and non-immigrant visas are, like everything in life, healthy in moderation.  On the other hand, I believe several if not all of the 9/11 perpetrators were here on non-immigrant visas.

But putting immigration policy aside, and the anomaly of terrorists, I have known many H1B and T1 (student) immigrants and they are all good people.  If they want to legally own firearms for sporting and defensive purposes while they are here, why not?  Let them take the things they learn here back to their homelands and convey to their countrymen how much safer they were here in the US, and how less oppressive the US government is to its people, because the US trusts its residents with guns.

In that vein, I don't see much need for the hunting license exception, but would rather see an exception for any legal non-immigrant alien.

What is a "firearm" part 2

After hours of fruitless research, I am unable to answer the following questions to my satisfaction:
  1. Who determines which part of a firearm shall be the serialized part?
  2. Is it always the case that only the serialized part is the firearm?
I sent an email to the ATF technical branch.  Everyone on the Internet seems to agree on the answers to these questions, but nobody can point to specific regulations or letter rulings.  I will post the ATF's response if and when I receive one.

Sunday, January 8, 2012

What is a Firearm? Part 1

When I decided that I would compete in the Service Rifle division of NRA High Power matches, I needed to acquire an AR-15.  The AR-15 is a semi-automatic rifle, the civilian version of the US military's M-16.  The only difference between the AR-15 and M-16 is that the M-16 is capable of fully automatic fire.   The AR-15 is currently the most popular choice for the Service Rifle division, which requires a rifle configured "as-issued" by the US military.

Here is a complete AR-15 service rifle:

However, competitors are allowed to upgrade the barrel and trigger of the rifle.  A popular route is to simply buy a complete "upper" receiver with a custom match barrel and match grade sights.  The upper can detach from the "lower" as it is simply held in place by two pins.  Here is the upper:

 For completeness, here is the "lower" with the lower receiver:
The seller, who happened to be an attorney, proposed sending the upper directly to my home address, and the lower to a licensed dealer.  Why?

Many people intuitively conclude that if under federal law you have to purchase firearms through a licensed dealer, then naturally the same would be true for gun parts.  This is, however, not the law.  Some gun parts require purchase through licensed dealers, some parts do not.

In the case of the AR-15, every website forum will tell you that the only part that requires purchase through a licensed dealer is the lower receiver, which bears the manufacturer's serial number.  In fact, the seller shipped a stripped lower receiver and parts kit to assemble myself, which saved a few dollars over an assembled lower:
We went ahead with the transaction as he proposed (lower through a licensed dealer, upper directly to me), without any issues.  This got me wondering, was this really legal?  How did this come to be the law for the AR-15?  Does it hold for all firearms?  Does it make sense?  

Legal Research:
I spent a couple hours browsing the ATF web site, which includes their regulations and rulings, but I am no closer to answers.  Sure, a google search reveals that everyone "knows" that only the AR-15 receiver is considered a "firearm."  But where is it written?  Everyone seems to believe that "only the serialized part" is the firearm, but again, where is that written?

What stops an AR-15 manufacturer, say Colt, from deciding to serialize the upper receiver, but not the lower?  For example, Ruger serializes the upper receiver on its MKIII pistols, not the frame, but many 1911 manufacturers serialize only the grip frame, not the upper slide.  How did this come about, and what would stop a manufacturer from making an AR-15 with a serialized upper only?  What would happen if one wanted to transfer the non-serialized lower?

Adding more spice to the dish is the existence of so-called "80% receivers."  These are receivers are not completely manufactured, but require some additional machining by the end user to be functional.  I was able to locate an ATF letter to a manufacturer discussing the topic, and what was required in order to produce hunks of metal that do not qualify as AR-15 receivers and therefore not as "firearms."  Unfortunately, the letter was not well cited.  I will discuss this 80% wrinkle in more detail later.

So at this time, I have more questions than answers.  Stay tuned.

Purpose of this Blog

I have owned firearms for over a decade.  I was not a lawyer at the time I bought my first gun, but I made sure to read everything I could to make sure I complied with relevant laws.

I became a lawyer roughly six years ago, and about that time coincidentally began participating in competitive shootings sports.  More deeply involved in shooting than the average person, over time I have became familiar with more and more of the tapestry of laws that regulate ownership and transfer of firearms in the United States.  My interest now has expanded beyond simply knowing what I need to do to avoid problems, and more towards genuine intellectual curiosity for this country's gun laws and the policies behind them.

So from time to time I find myself researching legal questions about gun laws to satisfy my curiosity.  Friends also will ask me legal questions about gun laws, and quite often I do not immediately know the answers, or even where to begin.  The purpose of this blog then, is to serve as a place for me to post my research and thoughts on gun laws for public comment.