National Defense Authorization Act Passes With Pro-Second Amendment Provisions

Posted on January 7, 2011

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On December 29, 2010, Congress sent the 2011 National Defense Authorization Act (NDAA) to the White House for President Barack Obama’s signature.  The legislation includes several provisions developed by NRA-ILA and pro-Second Amendment members of Congress, which will provide practical benefits to gun owners, while generating revenue for military bases, and protect the privacy and Second Amendment rights of gun-owning military personnel and their families and civilian employees of the Department of Defense.  President Obama is expected to sign the NDAA imminently.

Protecting the privacy and Second Amendment rights of military personnel, their families, and other DOD personnel:  Section 1062 of the Act prohibits the Secretary of Defense from issuing any requirement, or collecting or recording any information, “relating to the otherwise lawful acquisition, possession, ownership, carrying, or other use of a privately owned firearm, privately owned ammunition, or another privately owned weapon by a member of the Armed Forces or civilian employee of the Department of Defense” on property not owned or operated by the DOD.  It also requires, within 90 days, the destruction of any information of the type prohibited by the Act.

Championed by Sen. Jim Inhofe (R-Okla.), Section 1062 was necessary because of a preposterous regulation imposed by the garrison commander of Fort Riley, Kans., similar regulations imposed on other bases, and a regulation DOD was considering to impose department-wide—schemes which violated and threatened to violate the privacy, self-defense and Second Amendment rights of military personnel and their families.

Appallingly, the Fort Riley regulation required troops stationed there to register privately owned firearms kept off-base and firearms owned by their family members residing anywhere in Kansas.  It prohibited soldiers who have carry permits from carrying for protection off-base.  And, it authorized unit commanders to set arbitrary limits on the caliber of firearms and ammunition their troops may privately own.

Meanwhile, DOD’s plan would have required military commanders to require troops to register privately-owned firearms kept off-base, and authorized commanders to require troops living off-base to keep privately-owned firearms and ammunition locked in separate containers—the latter a requirement that the Supreme Court struck down as unconstitutional in District of Columbia v. Heller (2008).

Protecting Sales of Surplus Military Ammunition and Ammunition Components: Section 346 of the NDAA—an amendment sponsored by Rep. Brad Ellsworth (D-Ind.), culminates a nearly two-year effort by NRA-ILA and pro-Second Amendment members of Congress to preserve and increase the availability of once-fired military small arms cartridge cases and other ammunition components to civilian vendors, who use the components to produce commercially reloaded ammunition.

NRA-ILA’s effort began early in 2009, when we learned that government sales of fired small arms cartridge cases to civilian vendors had been temporarily interrupted, due to the cases having been reclassified under regulations governing their disposition.  That bureaucratic glitch was corrected quickly, but a year later it was learned that some military bases were scrapping cartridge cases in deformed condition, rather than making them available for sale in reloadable condition.

An effort by Senators Jon Tester (R) and Max Baucus (D) of Montana led to a voluntary reduction in the scrapping of cartridges on some bases.  But some other bases continued to scrap their cartridge cases, leading Congress to adopt a rider to the 2010 Defense appropriations bill, stipulating that “None of the funds available to the Department of Defense may be used to demilitarize or dispose of M-1 Carbines, M-1 Garand rifles, M-14 rifles, .22 caliber rifles, .30 caliber rifles, or M-1911 pistols, or to demilitarize or destroy small arms ammunition or ammunition components that are not otherwise prohibited from commercial sale under Federal law, unless the small arms ammunition or ammunition components are certified by the Secretary of the Army or designee as unserviceable or unsafe for further use.”

Section 346 achieves a more permanent solution to the problem, stipulating that “Small arms ammunition and ammunition components in excess of military requirements, including fired cartridge cases, which are not otherwise prohibited from commercial sale or certified by the Secretary of Defense as unserviceable or unsafe, may not be demilitarized or destroyed and shall be made available for commercial sale.”  As the section’s text indicates, it applies not only to fired cartridge cases, but also to loaded ammunition and other ammunition components.  This provision should significantly expand the quantity of surplus ammunition components available to commercial reloaders, resulting in the increased availability of reduced-cost ammunition to gun owners, while maximizing the revenues that bases can derive from the sale of ammunition components in usable condition.

Other Provisions:  The Act also contains language clarifying the conditions under which the government can reclaim military equipment sold to the private sector without strict adherence to regulations governing disposition of military property, and additional language introduced by Rep. Adam Putnam (R-Fla.) encouraging military installations to continue granting public access to base lands for hunting and fishing, and to provide discounted hunting and fishing permits and other accommodations to current and retired military personnel who have disabilities.

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