by Mixing in a little humor with some good research, Jerry Miculek addresses the whole SS109/M855 issue. He contrasts true armor piercing projectiles such as a WWII M1 Garand .30 caliber black tip AP round with the M855 Green Tip. There is quite a difference to say the least.
Jerry notes that the intent of the M855 was advanced penetration and not armor piercing. He urges his viewers to do their research and then contact the BATFE to submit a comment. Having read the “ATF Framework” line by line this morning, I think there is a lot that can be challenged in it. If they intend to go forward with this, it will end up in court given the BATFE’s selective reading of legislative history combined with a legal analysis intentionally favorable to what they want to do.
If the ATF goes through with this, it had better end up in court. I hope the NRA, SAF or someone would back a challenge to the decision. The ATF proposal makes two major mistakes or intentional oversights in the analysis.
First, it completely ignores the fact that M855 does not meet the definition of armor piercing in 18 U.S.C. 921(a)(17)(B)(i) because it the projectile is not completely made of steel. It is about 2/3 lead. Based on that the sporting purposes exception does not need to even be considered.
Second, their drawn out sporting purposes analysis states that to determine "primarily intended" you must look at the "likely use" of the ammo. But they look at only the likely use in handguns, when 18 U.S.C. 921(a)(17)(C) which is what allows the sporting use exemption does not reference only handguns. By adding the restriction of looking at only handgun use they are eliminating (perhaps intentionally) all the target shooting rifle use. They also state in the document that target shooting is a traditional sporting use. So I think their own arguments can be used against them.
I think those two points would stand up in court but I am not a lawyer or legal expert. It just is "reasonable" and "common sense" based on being able to comprehend the English language.
I have heard many people, including the Polite Society podcast, mention the first problem above but I have not heard much on the second problem. The NRA has said that "BATFE's framework does not clarify the "sporting purposes" exemption; it simply interprets it into irrelevance." but I think it is important to point out how the ATF is interpreting the sporting purposes exemption in an overly restrictive way that is not in the statute. I believe that both issues need to be addressed because even if the M855 ban were to be thrown out based on the content of the projectile core, the ATF way of determining sporting purposes could stand and have effects on other ammo or even perhaps other ATF regulations.