An article by Tom Knighton, published September 25 on BearingArms.com, refers to an article by David Codrea in Firearms News, which encouraged President Donald Trump to order the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) to rescind its 1989 ban on the importation of semi-automatic rifles comparable to the AR-15.
Codrea endorsed what he said is Firearms News editor-in-chief Vincent DeNiro’s idea that “President Trump (should) order the BATFE to declare all imported semi-auto rifles as ‘sporting,’ which is what these same models are considered when domestically produced.”
I disagree. Trump should not issue that order and we should not encourage the notion that the rifles are “sporting.” To explain why, some background is required.
The BATFE’s enforcement arm is under the Attorney General and, as amended, a provision of the Gun Control Act of 1968, 18 USC 925(d)(3), states:
The Attorney General shall authorize a firearm or ammunition to be imported or brought into the United States or any possession thereof if the firearm or ammunition . . . is generally recognized as particularly suitable for or readily adaptable to sporting purposes...”
Fast forward to early 1989, when, after a multiple-victim shooting with an AK-type rifle, the late-Sen. Howard Metzenbaum of Ohio, a Democrat some said was a communist, introduced the first “assault weapon” ban in Congress.
It didn’t pass, partly because Republican President George H.W. Bush resisted a domestic ban. However, Bush reportedly was influenced by the head of the Heritage Foundation, the late Edwin Fuelner, and then-“Drug Czar” William Bennett, to tell the BATFE (then the BATF) to reinterpret 925(d)(3) to ban the importation of several dozen semi-automatic rifles, such as AK-47s and AKMs; the FN FAL and FNC; the HK91, 93, and 94; the Steyr AUG; improved-AK-type Valmets and Galils; and the Uzi carbine and Mini-Uzi.
The BATF had to reinterpret 925(d)(3) because rifles of the type in question had been recommended for importation by the Treasury Department’s Firearms Advisory Panel in 1968 and the BATF had approved them for importation on that basis.
To reverse itself, the BATF rejected its previous determinations and the Panel’s 1968 recommendation, and banned the rifles because they had features such as a detachable magazine, a pistol-type grip, a folding or adjustable-length stock, a flash suppressor, and a bayonet mount.
That approach tracked the anti-gun Violence Policy Center’s 1988 proposal that “Criteria to identify and categorize assault weapons could be developed by ATF and applied toward restricting the availability of both foreign- and domestically-produced assault weapons.”
Then, the BATF got creative. In its report on its ban, while it recognized that “sporting purposes” included “target shooting,” it said target shooting meant only “organized marksmanship competition.”
That excluded informal target practice, which—then, as now—was the vast majority of target shooting in the United States. But it also ignored the fact that in 1989, the most organized rifle marksmanship competitions in our country were the NRA’s National Rifle Championships and the National Trophy Matches of the Director of Civilian Marksmanship program (since reorganized as the Civilian Marksmanship Program). That’s relevant because rifles having the same features as those the BATF banned were the type most commonly used in the service rifle category of the NRA championships and all of the National Trophy Matches, and they still are today.
The BATF also said that target shooting didn’t include “combat-type competitions,” ignoring the fact that the National Trophy Matches were authorized by Congress to promote combat-oriented marksmanship, and the fact that the Olympics, among the most “organized” of sporting events, were originally martial in nature and to this day include “combat-type competitions,” such as javelin throwing, archery, fencing, judo, tae kwon do, boxing, wrestling, and the biathlon, inspired by the skills of Norwegian soldiers and by the Finns who fought communist invaders in World War 2.
The BATF further said:
We found that the modern military assault rifle contains a variety of physical features and characteristics designed for military applications which distinguishes it from traditional sporting rifles. These military features and characteristics (other than selective fire) are carried over to the semiautomatic versions of the original military rifle.
However, that was irrelevant, because 925(d)(3) doesn’t require that rifles be “traditional sporting rifles.” It requires that they be “particularly suitable for or readily adaptable to sporting purposes.” And while the National Trophy Matches require semi-automatic and select-fire U.S. service rifles, and semi-automatic variants of the latter, the foreign-made rifles the BATF banned were “readily adaptable” to the NRA’s match rifle category.
Furthermore, there’s no disputing that the same rifles would be “particularly suitable for or adaptable to” the most popular rifle marksmanship competitions today: 3-Gun, 2-Gun (service-type rifle and pistol), and Designated Marksman.
Now, here is where I disagree with Codrea and DeNiro.
The Second Amendment protects the right to keep and bear arms for “the security of a free State” against tyranny, not sports. And—sorry, National Shooting Sports Foundation—AR-15s and rifles like them, including the ones the BATF banned in 1989, are not “Modern Sporting Rifles.” They are the semi-automatic-only versions of select-fire rifles such as the M16, rifles designed for combat, and therefore—contrary to Supreme Court Justice Antonin Scalia’s absurd dicta in his majority opinion for District of Columbia v. Heller (2008)—rifles the Second Amendment quintessentially protects the right to keep and bear.
It’s important that President Trump be very specific on what he orders the BATFE to do to reverse its 1989 reinterpretation of 925(d)(3)—and it’s 1998 re-reinterpretation, which expanded the 1989 ban and which Codrea and DeNiro forgot to mention—because the Supreme Court almost certainly will soon hear challenges to several states’ “assault weapon” and >10-round magazine bans, and two separate challenges to the National Firearms Act’s restrictions on suppressors, short-barreled rifles, and short-barreled shotguns.
The president, Attorney General Pam Bondi, and Assistant Attorney General for Civil Rights Harmeet Dhillon should be encouraged to emphasize that the Court has repeatedly said that the right to arms is concerned with defense, not sport. (Dhillon, it should be noted, recently argued against Illinois’ “assault weapons” ban before the U.S. Court of Appeals for the Seventh Circuit, telling the court “The U.S. position is that AR-15s are arms protected under the Second Amendment.”)
Where 925(d)(3) is concerned, the best option would be for Congress and President Trump to amend the provision to remove its reference to sports, and to require the BATFE to approve the importation of any firearm or ammunition that is of a type that is legal to possess under federal law. At the same time, they should repeal the Unsoeld Amendment (18 USC 922(r)) and federal regulation 27 CFR 478.39, which prohibit using imported parts to assemble a semi-automatic rifle the BATFE prohibits from importation.
Short of that, President Trump, rather than ordering the BATFE to declare the rifles in question “sporting,” should order it to withdraw its 1989 and 1998 reinterpretations of 925(d)(3), stating four things expressly:
First, the entire Bill of Rights was adopted to prevent tyranny, and the Second Amendment refers to “the security of a free State,” further indicating that it protects the right to arms primarily for that purpose. (Not merely for self-defense, as claimed by Justice Scalia in Heller. While it’s not necessary to correct Scalia’s error to deal with 925(d)(3), it would be helpful to do so where challenges to “assault weapon” bans are concerned, because some lower courts have said that AR-15s can be banned because they are akin to the combat-oriented M16.)
Second, while rifles the BATF banned from importation in 1989 and 1998 are designed for defensive purposes, and surveys consistently show that defense is the reason most commonly cited by Americans for why they own guns, the rifles in question are also “particularly suitable for or readily adaptable to” today’s most popular “sporting purposes.”
Third, the most popular “organized marksmanship competition(s)” for rifles today are centered around not only individual defense marksmanship skills, but also those relevant to collective defense, which the BATF in 1989 termed “combat-type competitions” and improperly dismissed.
And fourth, “sporting purposes” indeed includes “target shooting,” and throughout history, informal practice and training has accounted for the vast majority of target shooting in our country. Practice and training are important, because, as Alexander Hamilton explained in The Federalist, #29, the Framers envisioned that to be able to defeat tyranny, the armed citizenry would be “little, if at all, inferior (to soldiers) in discipline and the use of arms.”
To all of which President Trump might add, “Thank you for your attention to this matter!”
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