Recently the ATF has waffled on how to interpret an old law. In the 80’s, Congress passed legislation to prohibit the manufacture and importation of handgun ammunition designed to pierce armor. Historically, the law has been applied to practically any round under 50 caliber with the only exceptions being 30-06 and 5.56 “green tip”.
Other 5.56 ammunition, including true armor piercing designated by a black tip, has been banned from civilian sell. So what are we to make from this unequal treatment of 5.56 ammunition? The ATF must consider the 5.56 to be handgun ammunition, otherwise black tip ammunition would be available to the general public.
So why was “green tip” ammunition allowed to be sold when “black tip” was not? I believe that answer can be found in the two part definition of “armor piercing ammunition” at 18 U.S.C. 921(a)(17)(B).
Subsection (i) bans all handgun ammunition with a projectile or projectile core made entirely “from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper or depleted uranium.” Those who are familiar with the “green tip” ammunition know that it has a two part core with a significant part made of lead; a metal not listed. Since the core is made of two different materials, one of which is not listed, the bullet does not fall within subsection (i).
Subsection (ii) bans ammunition “designed and intended for use in a handgun” where the jacket of the bullet makes up more than 25% of the weight of the bullet. According to the ATF, at the time the “green tip” ammunition was designed and an exemption applied for, commercial AR-15 style handguns were not available. Thus we can deduce the ammunition was not designed and intended for a handgun.
Once the ammunition is designed, unless it is redesigned, the purpose of the design cannot change. Therefore, without the ability to say the ammunition was designed for handguns, subsection (ii) should not apply.
Once analyzed, it becomes clear that “green tip” ammunition should not fall within the definition of “armor piercing ammunition”. Unfortunately, the ATF moved to include “green tip” 5.56 in the definition of subsection (i) without addressing that the core is not made entirely from one of the proscribed materials.
The ATF then bungled this attempted rule change. First it drafted its regulations book and conveniently left out the 30 year exemption for the ammunition effectively putting the public on notice that “green tip” 5.56 was illegal. Next, more than a month later, it published a proposed rule change that would reclassify the ammunition and allowed 30 days for comments. Before the comment period could run, the change in the regulations book was discovered and publicized. Meanwhile, the ATF received an overwhelming response, more than 80,000 comments, that were mostly negative: This included a letter from a majority of the House and Senate against the ban.
In face of the overwhelming odds, the ATF chose a tactical retreat and alerted the public that it would “further evaluate the issues raised” by the comments. While this is certainly good news, it is not the end of ATF’s push to restrict ammunition.