Comments on ATF’s Proposed Ban of M855 Ammunition

by Michael E. Hammond
Legislative Counsel
Gun Owners of America
(March 2015)

If anyone needed any more proof that your agency — and your department — has become a politicized repository of liberal anti-gun hacks, your proposed effort to effectively ban AR-15’s by illegally banning AR-15 ammunition has cleared up any doubt.

Make no mistake about it:  Your illegal efforts will not stand.  And, when Congress defunds your actions, we will make every effort to insure that they also take a big chunk out of your budget.

First, the big picture:  On April 17, 2013, the Democrat-controlled Senate defeated efforts to ban semi-automatics, with particular emphasis on efforts to ban AR-15’s.  The vote on the Feinstein amendment was 40-60 — 20 votes short of what would have been needed to prevail.  

Everyone in the pro-gun community — in addition to both pro- and anti-gun senators — understands that your proposed rulemaking is an illegal roundabout way of effectively banning AR-15’s by banning the most common AR-15 ammunition.  And, thus, it is another effort to thwart the Constitution and the will of Congress — coming from a Department that has repeatedly shown contempt for the Constitution and the law.  

Already, not only is M855 ammunition almost impossible to acquire in many parts of the country; your efforts have led to a run on virtually all types of ammunition — by gun owners operating under the assumption that your illegal actions on M855 ammunition could just as well be extended to any type of ammunition, given that the black-letter language of the law is no impediment to you.  

We understand, additionally, that large quantities of NATO-surplus ammunition are becoming available.  And, perhaps not coincidentally, your proposed actions would dry up the civilian market for that surplus.  

We know that you know all of the reasons why your proposed actions are unlawful.  And we suspect that’s why you are trying to fast-track your procedure and sneak this regulation through.  But just to make the record clear, here is why you are acting illegally.

FIRST:  There is all sorts of M855 ammunition.  But, generally speaking, most M855 ammunition does not, as 18 U.S.C. 921(a)(17)(B)(i) requires, have a “projectile or projectile core … which is constructed entirely … from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium…”  IMI’s M855 is lead with a steel tip.  As this illustration shows, even M855 ammunition with one of the eight substances is not constructed “entirely” of that substance, as 921(a)(17)(B)(i) requires.   

SECOND:  M855 ammunition was not “designed and intended for use in a handgun,” as 18 U.S.C. 921(a)(17)(B)(ii) requires.  And, in fact, your efforts to contort the 921(a)(17)(B)(i) standard (“which may be used in a handgun”) to turn rifle ammunition into “handgun ammunition” simply because some rare, exotic, large, or expensive handgun could fire the ammunition is not consistent with the intent of the drafters.  

Senator Daniel Patrick Moynihan, one of the bill’s chief proponents, stated in committee hearings on the legislation:

Let me make clear what this bill does not do.  Our legislation would not limit the availability of rifle ammunition with armor-piercing capability. 

THIRD:  For decades, ATF has avoided the consequences of its other illegal interpretations by finding that M855 ammunition has a “sporting purpose.”  This is not a distinction that we find particularly constitutional.  But given that it’s in 18 U.S.C. 921(a)(17), it’s significant that every evidence we have is that over 50% of the use of AR-15’s is for hunting or target shooting. 

Just as the Obama administration tried to establish, for purposes of an import ban, that shotguns had no “sporting purpose,” we find your misperception of how guns are used to be the result of either deception or willful ignorance. 

The administration claims that a ban on this ammunition is needed for officer safety.  But the nation’s largest organization of sworn law-enforcement officers — the Fraternal Order of Police — says that “this specific [M855] round has historically not posed a law enforcement problem.” 

The administration would have us believe that officers face a threat from an M855 round that can be fired from a handgun.  But that stretches credulity, given that pistols which are built on an AR-15 platform cannot be easily concealed.

As stated by one GOA Life Member, who is an armorer and firearm instructor, “AR-15 pistols are physically very large and bulky due to the use of what is traditionally a rifle receiver and the necessity of the receiver extension used to house the buffer and buffer spring.  AR-15 pistols are at least 23 inches long.” 

It’s no wonder that you have not demonstrated one example of the M855 round being fired from a handgun and penetrating the body armor of a police officer.  This ban is completely whimsical and without merit.

In sum, your regulation will not stand.  You can withdraw it of your own accord.  Or, in the alternative, Congress will slap you down. 

We would caution you, however, that, if it is necessary for Congress to punish you — much as it would an errant child — the experience is going to be much more painful and humiliating for your agency.

James Pasco, executive director of the Washington office of the Fraternal Order of Police, “Police say Obama bullet ban isn’t needed, AR-15 round isn’t a threat,” The Washington Examiner, March 3, 2015.