From: gray@unirsvl.rsvl.unisys.com (Bill Gray ) Subject: ACTION: BATF Magazine Import Ban Comments To: firearms-alert@shell.portal.com (Firearms Alert) Date: Tue, 2 May 95 17:52:34 CDT I received this from Joe Olson, GOAL member and member of the NRA Board of Directors. Please take action as soon as possible. Spread the word. > Date: Tue, 2 May 1995 08:58:00 -0500 (CDT) > From: Joseph Olson > To: gray@winternet.com > Subject: GET BATF MAGAZINE.BAN (1/1) (fwd) > Message-Id: > Mime-Version: 1.0 > Content-Type: TEXT/PLAIN; charset=US-ASCII > > > Pro-gun people need to send comment to BATF about this issue as the > proposed regulationd BAN imported magazines whenever made. You can make > the same points as those made in this Senate Letter. Regs are in April > 5, 1995 Federal Register. Comment period is open for 90 days. Send > comment letters (no special format required) to: Chief, Regulation > Branch; Bureau of Alcohol, Tobacco and Firearms; Washington, DC > 20091-0221. The more comment letters sent in the better the chance the > agency will feel the heat and therefore see the light. > > ---------- Forwarded message ---------- > Date: Mon, 1 May 1995 15:56:09 -0400 > From: listproc@gatekeeper.nra.org > To: jolson@seq.hamline.edu > Subject: GET BATF MAGAZINE.BAN (1/1) > > Archive BATF, file magazine.ban. > Part 1/1, total size 7065 bytes: > > ------------------------------ Cut here ------------------------------ > January 10, 1995 > > Mr. John W. Magaw, Director > Bureau of Alcohol, Tobacco and Firearms > Department of the Treasury > 650 Massachusetts Ave., N.W. > Washington, D.C. 20226 > > Dear Mr. Magaw: > > We have been informed that BATF is enforcing the provisions of the > Violent Crime Control and Law Enforcement Act of 1994 ("the Act") > concerning firearms magazines with an interpretation contrary to the > language of the Act. We strongly object to the Bureau's apparent > efforts to circumvent the will of Congress in this matter. > > The Act amended 18 U.S.C. Sec. 922 by adding a new subsection (w) to > prohibit the transfer or possession of certain firearms magazines > categorized as "large capacity ammunition feeding devices" -- by > definition, those manufactured after the date of enactment, September > 13, 1994. > > Since the date of enactment of the Act, BATF has refused to allow the > importation of any magazines having a capacity of more than ten > rounds, regardless of the date of manufacture. Unofficially BATF > professes to be still "studying" this issue, and has made no formal > announcement of its policy. However, recent shipments of such > magazines manufactured before the date of enactment have been > impounded by U.S.Customs, acting on instructions from BATF. > > The term "large capacity ammunition feeding device" is a new term of > art introduced by the Act. An addition to 18 U.S.C. Sec. 921(a) > --the "Definitions" section of the Gun Control Act-- specified what > this term of art means. Paragraph (31) now provides: > > "The term large capacity feeding device'_ > > (A) means a magazine, belt, drum, feed strip or similar device > manufactured after the date of enactment of the Violent Crime Control > and Law Enforcement Act of 1994 that has a capacity of, or that can > be readily restored or converted to accept, more than 10 rounds of > ammunition, but > > (B) does not include an attached tubular device designed to accept, > and capable of operating only with, .22 caliber rimfire ammunition." > > It is an elementary rule of statutory construction that where a > limitation is expressed in the definition of a term of art, such > limitation is implicit in every provision to which the term of art > applies. In each instance that the phrase "large capacity ammunition > feeding device" appears in the Act, it can refer only to a device > manufactured after September, 13, 1994. Thus the prohibition on > transfer or possession contained in sec, 922(w)(1) does not encompass > any magazines manufactured before that date, regardless of where it > was made or where it currently reposes. Therefore, BATF has no > authority to deny its importation. > > It has been suggested that this interpretation might require the Act > to be given extraterritorial effect. That is patently incorrect. > Such a view erroneously focuses on sec. 922(w)(2), a "grandfather" > clause which exempts from the prohibition any magazine "otherwise > lawfully possessed" prior to the effective date of the Act. However, > it is the definition quoted above which controls the scope of the > prohibition in the first place --not this exemption. Obviously > Congress has no jurisdiction to prohibit (or exempt) the transfer or > possession of any magazine by non-Americans outside the United States > --but that does not prevent Congress from limiting the meaning of > "large capacity ammunition feeding device" according to any criteria > it chooses to use. > > In specifically limiting the prohibited magazines to those made after > September 13,1994, Congress has followed much the same course as with > the firearms themselves. In 1968, Congress defined "firearm" as a term > of art to encompass only those manufactured after 1898. Those made > before simply are not covered by the Act. In 26 years no one has ever > suggested that this definition did not apply to any firearm in the > world, or that BATF had any statutory authority to deny the > importation of one manufactured before 1898. > > We are aware that concerns have been expressed that, with respect to > imported magazines, certain difficulties may arise in administering > the law. However, that is much more the case with respect to > domestically-made magazines. Before final passage the Act was > deliberately amended to include unprecedented safeguards regarding > the burden of proof (indeed, even a presumption of exclusion from the > Act) and other provisions to protect the citizenry from overzealous > BATF enforcement. Under these circumstances it would be very > disturbing if BATF refused to accept the statute as written. > > While BATF can ask Congress to change the law, it has no authority to > unilaterally amend it with an interpretation inconsistent with its > plain language. The Supreme Court, in Chevron U.S.A., Inc. v. Natural > Resources Defense Council, Inc., 467 U.S.837 (1984), set forth a > two-step process for judicial review of an agency's interpretation of > a statute: > > First, "is the question of whether Congress has directly spoken to > the precise question at issue. If the intent of Congress is clear, > that is the end of the matter."1 Second, where "the statute is silent > or ambiguous with respect to the specific issue, the question for the > court is whether the agency's answer is based on a permissible > construction of the stature."2 > > An application of the Chevron two-step analysis to the situation at > hand, renders it unnecessary to reach the second step. Congress has > spoken directly to the issue of exactly what criteria must be met to > bring a magazine under the jurisdiction of the magazine provisions in > the Act. As stated above, the definition of a large capacity > ammunition feeding device' requires that the magazine must have been > "manufactured after the date of enactment" of the Act before it can > be brought under the influence of the Act. Therefore magazines > manufactured within, or outside of, the boundaries of the U.S. before > September 13, 1994, do not meet the statutory definition of a 'large > capacity ammunition feeding device'. > > A review of the second step of the Chevron test only serves to > further substantiate the result reached above in the first step. If > the agency attempts to interpret the statute such that high-capacity > magazines must not only have been manufactured, but also imported on > or before the date of enactment of the Act, it is clear that such a > result would not be "based on a permissible construction of the > statute." Although agencies have substantial discretion in their > executive role of implementators and interpreters of the law, they > may not reinvent that which Congress has already made clear in its > legislative role as architects of the law. > > Accordingly, we would like to be informed immediately of BATF's > official position on this issue. Furthermore, if your agency > proposes to deny importation of pre-enactment magazines, I would like > a detailed explanation regarding the precise legal grounds upon which > such action is justified. > > We would like your response within 10 days of receipt of this letter. > > Sincerely, > > Letter signed by Senators Orrin Hatch, Howell Heflin and Larry Craig > > > 1. Chevron, 467 U.S. U.S. At 842 > > 2. Id. Regards, Bill -- gray@RSVL.UNISYS.COM Unisys has enough problems without being blamed for my personal opinions.