Industry News: October 1998

By Robert M. Hausman

Details Of Treasury Department Study Shows the Reasoning Behind the recent Import Gun Ban

How the federal government justified its April 6 import ban on some 58 different firearm models is contained within the report, “Department Of The Treasury Study On The Sporting Suitability Of Modified Semiautomatic Assault Rifles” issued by the Treasury Department’s Bureau of Alcohol, Tobacco & Firearms (BATF).

On November 14, 1997, President Clinton and Secretary of the Treasury Rubin ordered a review of the importation of certain modified versions of various firearms (which were modified to comply with U.S. import regulations) then being imported into the U.S. The decision to conduct the review stemmed from concerns that the rifles being imported were essentially the same as so-called semiautomatic “assault rifles” previously determined to be non-importable in a 1989 decision by the BATF and the Bush Administration. As part of President Clinton’s action, all pending and future applications for importation of the affected rifles were suspended until completion of the review.

Under 18 U.S. Code section 925(d)(3), import applications can only be approved for firearms generally recognized as “particularly suitable for or readily adaptable to sporting purposes.” When BATF conducted its review in 1989, it found certain rifles, while not machine-guns, still had a military configuration that was designed for killing and disabling the enemy which distinguished them from traditional sporting rifles. This distinctively military configuration served as the basis for BATF’s finding that the rifles under review were not considered sporting firearms under the statute.

The military configuration identified by BATF incorporated eight physical features: ability to accept a detachable magazine, folding/telescoping stocks, separate pistol grips, the ability to accept a bayonet, flash suppressor, bipod, grenade launcher, and night sights. In 1989, BATF took the position that any of these military configuration features, other than the ability to accept a detachable magazine, would make a semiautomatic rifle not importable.
Subsequent to the 1989 decision, certain rifles that failed the 1989 “Sporting purposes” test were modified to remove all of the military configuration features other than the ability to accept a detachable magazine. Significantly, most of these modified rifles not only still had the ability to accept a detachable magazine but, more specifically, still had the ability to accept a detachable large capacity magazine that was originally designed and produced for the military assault rifles from which they were derived. Only one study rifle, the VEPR Caliber .308 (although an AK variant) was found to meet the sporting purposes test as it accepts only proprietary five and 10-round magazines. Like the rifles banned in 1989, the study rifles were semiautomatic firearms based on the AK47, FN-FAL, HK91 and 93, Uzi, and SIG SG550 military rifles.

A review was conducted on the use and suitability of “large-capacity military magazine” rifles in the civilian sector by BATF. The results found that while such rifles are sometimes used for hunting, their actual use is limited. Similarly, although such rifles are sometimes used for organized competitive target shooting, there are some restrictions and prohibitions on their use within target shooting organizations. Furthermore, it was said that these types of firearms are attractive to certain criminals, including “a rapid and continuing increase in crime gun trace requests after 1991 and a rapid time to crime” (meaning the length of time elapsed between the gun’s retail purchase and the time it is traced to involvement in a crime), the report notes.

In implementing laws, the federal government looks to the intent of Congress in a law’s drafting. During debates on the bill, which later became the Gun Control Act of 1968 the measure that first established the “sporting test” criteria for imported firearms, the bill’s sponsor, the late Senator Thomas Dodd of Connecticut, stated: “I would have to say that if a military weapon is used in a special sporting event, it does not become a sporting weapon. It is a military weapon used in a special sporting event… As I said previously, the language says no firearms will be admitted into this country unless they are genuine sporting weapons.” It should be noted that the major American firearms manufacturers largely supported the Gun Control Act of 1968 as it worked to stifle their competition from abroad.

1984 Analysis

Although the 1968 law established an import criteria for handguns, there was no criteria developed for evaluating the “sporting purposes” of rifles and shotguns, other than to impose a ban on surplus military firearms. The first time the BATF took a meaningful analysis of long guns under the “sporting purposes” test was in 1984. At that time, a “new breed” of imported shotgun had emerged on the market, and the agency felt the historical assumption that all shotguns were sporting was no longer viable.

Specifically, the BATF was directed to determine if the Striker-12 shotgun-a military/law enforcement gun initially designed and manufactured in South Africa for riot control- was suitable for sporting purposes. When the importer was asked to submit evidence of the shotgun’s sporting purposes, it provided information that the arm was suitable for police/combat-style competitions. BATF determined that this type of competition did not constitute a sporting purpose under the statute, and that the shotgun was not suitable for the traditional shotgun sports of hunting, and trap and skeet shooting.

1986 Interpretation

In 1986, BATF again had to determine whether a shotgun met the sporting purposes test, when the Gilbert Equipment Company requested that the USAS-12 shotgun be classified as a sporting firearm under federal law. After examining and testing the arm, BATF determined its weight, size, bulk, designed magazine capacity, configuration, and other factors prevented it from being classified as particularly suitable for or readily adaptable to traditional shotgun sports and its importation was denied.

When this decision was challenged in federal court, BATF argued that large magazine capacity and rapid reloading ability are military features. The court accepted this argument, finding “the overall appearance and design of the weapon (especially the detachable box magazine…) is that of a combat weapon and not a sporting weapon. In reaching this decision, the court was not persuaded by the importer’s argument that box magazines can be lengthened or shortened depending on desired shell capacity. The court also agreed with BATF’s conclusion that police/combat-style competitions were not considered sporting purposes.

1989 Examination

In 1989, after five children were killed in a California school yard by a gunman with a semiautomatic copy of an AK47, BATF decided to re-examine whether certain semiautomatic “assault-style rifles” met the sporting purposes test. In March and April 1989, BATF announced it was suspending the importation of certain “assault-style rifles.” The rifles involved met the following criteria: military appearance; large magazine capacity; and, being a semiautomatic version of a machinegun. A BATF working group was established to reevaluate the importability of these rifles. On July 6, 1989, the group issued its report.

In the 1989 report, the working group discussed whether the rifles under review fell within a “type” of firearm for the purposes of U.S. law. The group concluded that most of the “assault-type” rifles under review represented “a distinctive type of rifle (which it called the “semiautomatic assault rifle”) distinguished by certain general characteristics common to the modern military assault rifle. The working group explained that the modern military assault rifle is a weapon designed for killing or disabling the enemy and has characteristics designed to accomplish this purpose. Moreover, it found that these characteristics distinguish modern military assault rifles from traditional sporting rifles.

The working group identified the modern military assault rifle as having the following characteristics: military configuration (which included: ability to accept a detachable magazine, folding/telescoping stock, separate pistol grip, ability to accept a bayonet, flash suppressor, bipod, grenade launcher, and night sights); ability to fire automatically (i.e. as a machinegun); and, chambered to accept a centerfire cartridge case having a length of 2.25 inches or less.

In regard to the ability to accept a detachable magazine, the working group said, “virtually all modern military firearms are designed to accept large, detachable magazines. This provides the soldier with a fairly large ammunition supply and the ability to rapidly reload. Thus, large capacity magazines are indicative of military firearms. While detachable magazines are not limited to military firearms, most traditional semiautomatic sporting firearms, designed to accommodate a detachable magazine, have a relatively small magazine capacity.”

The rifles then under review were found to share all of the designated military assault rifle characteristics with the exception of being machineguns. In looking at the meaning of “sporting purposes” within the law, the working group found that its meaning was intended to stand in contrast to military and law enforcement applications and consequently determined police/combat-type competitions should not be treated as sporting activities.

The working group then evaluated whether the semiautomatic assault rifle type of firearm is generally recognized as particularly suitable for or readily adaptable to traditional sporting applications. Taken into account were technical and marketing data, expert opinions, and information on the recommended and actual uses for which the arms were employed in this country. Criminal use, however, was not considered in the analysis. The group concluded semiautomatic “assault rifles” are not generally recognized for sporting purposes use and thus, should not be imported.

However, some of the rifles under review (the Valmet Hunter and .22 rimfire rifles), did not fall within the semiautomatic assault rifle type. In the case of the Valmet Hunter, the working group found that although it was based on the operating mechanism of the AK47 assault rifle, it had been substantially changed so that it was similar to a traditional sporting rifle. Specifically, it did not have any of the military configuration features identified by the working group except for the ability to accept a detachable magazine.

Following the 1989 ban, BATF took the position that a semiautomatic rifle with any of the eight military configuration features identified in the 1989 report, often than the ability to accept a detachable magazine, failed the sporting purposes test and, therefore, was not importable.

1997 Ban Analysis

One of the most interesting aspects of the 1997 import ban is that the government is taking a very narrow view of the “sporting purposes” test to refer solely to the traditional sports of hunting and organized competitive target shooting. Self-defense uses of the firearms in question are not considered, nor is informal target shooting or the activity of shooting at randomly selected bottles and cans known as “plinking.”

Following the enactment of the Gun Control Act of 1968, the Secretary of the Treasury established a council (known as the Firearms Evaluation Panel, or FEP) to provide guidance in implementing the sporting purposes test. This panel was composed of representatives from the military, the law enforcement sector, and the firearms industry.

The FEP addressed the activity of “plinking” and determined it was not a legitimate sporting purpose under the statute. The panel found, according to the report, that, “while many persons participate in this type of activity and much ammunition was expended in such endeavors, it was primarily a pastime and could not be considered a sport for the purposes of importation since any firearm that could expel a projectile could be used for this purpose without having any characteristics generally associated with target guns.”

On another point, although the 1989 study did not consider the criminal use of firearms in its importability analysis, such information was included in the latest study. Noted anti-gun advocate Garen J. Wintemute, MD, M.P.H. director of the Violence Prevention Research program, University of California, Davis, was among those retained to provide assistance with crime-related information.

While in the 1989 review the ability of a firearm to accept a detachable large capacity magazine, in the absence of other military configuration features, was not viewed as disqualifying in the “Sporting purposes” test, this view was changed in 1997. Giving impetus to this decision was the 1994 Congressionally passed ban on manufacture (for the civilian sector) of large capacity magazines. In passing the 1994 law, Congress found magazine capacity to be such an important factor that semiautomatic rifles that cannot accept a detachable magazine holding more than five rounds were not found to be banned, even if the rifle contained all five of the “assault weapon” features listed in the law.