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BATFE Modifies Shotgun Import Ban Study, Still Gets It Wrong

Friday, July 13, 2012

In January 2011, the Bureau of Alcohol, Tobacco, Firearms and Explosives released its "Study on the Importability of Certain Shotguns." Using the unconstitutional and oft-abused "sporting purposes" test as justification, BATFE concocted a list of ten popular shotgun features and determined that "shotguns containing any of these features are not particularly suitable for nor readily adaptable to generally recognized sporting purposes." Guns with any of these features will therefore be prohibited from importation.

A public comment period followed the study's release. NRA-ILA submitted
extensive comments and encouraged gun owners to do the same. After receiving roughly 21,000 comments, with approximately 15,000 of them challenging the constitutionality and efficacy of the "sporting purposes" test, BATFE has been compelled to reverse two of its more onerous determinations.

In an
update to the shotgun importation study, the BATFE determined that it will no longer consider forward pistol grips or integrated rail systems as features barring importation. To justify its change of opinion on forward pistol grips, BATFE stated, "there is a convincing argument that this feature is generally recognized as particularly suitable for or readily adaptable to sporting purposes because it permits accuracy and maneuverability even for activities such as bird hunting or skeet shooting." The update also mentions public comments explaining the importance of forward pistol grips for disabled shooters. BATFE goes on to explain that its determination of forward pistol grips as sporting necessitates their acceptance of integrated rail systems, as rail systems are the primary way in which shooters mount forward pistol grips.

However, gun owners shouldn't confuse BATFE's shift on these features with a newfound respect for Second Amendment rights. The reversal is couched in language justifying the change under the "sporting purposes" test and most of the update is dedicated to justifying the agency's previous report.

In response to the thousands of commenters who suggested the sporting purposes test violates their constitutionally protected right to keep and bear arms, BATFE is dismissive. The agency pays lip-service to Second Amendment rights, citing a central piece of the Heller decision, but then states with no further explanation, "concerns about the constitutionality of [the sporting purposes test] or ATF application of this statute are without legal basis." But even a casual reading of the Heller decision proves such concerns do have basis. Rather than duck hunting, Justice Scalia found self-defense to be "the central component of the right itself."

Similarly strained is BATFE's continued defense of the position that shotguns with the remaining banned features are not "generally recognized as particularly suitable for or readily adaptable to sporting purposes." The agency notes that it received numerous comments regarding shooting sports such as three-gun, in which the features banned by BATFE are commonly used. BATFE compares the United States Practical Shooting Association's 19,000 members who participate in three-gun, to the 10.7 million licensed hunters nationwide and comes to the conclusion that since this measure of the three-gun community is .18% the size of the hunting community, three-gun equipment is not "generally recognized" as suitable for sporting purposes.

This argument is disingenuous and exposes BATFE's bias against certain popular firearms. In determining "generally recognized," BATFE treats hunting as a single widely practiced sport, while breaking the shooting sports into bite-size categories small enough to ban the equipment the agency finds objectionable.

In downplaying the ban's burden on gun owners, BATFE says, "it should be noted that the sporting purposes test under 18 U.S.C. § 925(d)(3) applies as a limitation only on the importation of shotguns." Not mentioned is that under federal law an individual is also barred from assembling a semi-automatic shotgun that that would otherwise be prohibited from importation. Under BATFE's scheme, a person who mounts a flashlight or telescoping stock on an imported semi-automatic shotgun could be in violation of federal law.

BATFE's partial reversal shows the positive impact determined gun owners can have on the regulatory process. But this battle is far from over. In the short-term, NRA-ILA will continue to work with its friends in Congress, using the appropriation process to prohibit the BATFE from enforcing this ban, as has been the case since 2011. In the long-term NRA-ILA will work for the repeal of the unconstitutional "sporting purposes" test.

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.