Monday, January 23, 2012

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

Background:
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?

Analysis:
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.

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