BATFE Comment on Study for Importability of Shotguns

7/31/2019 BATFE Comment on Study for Importability of Shotguns

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Thank you for reviewing and considering my comments in respect to The ATF Study on the Importability

of Certain Shotguns. Overall, while expertly assembled, the study contains certain flaws, which

contribute to a set of beliefs that improperly assert a definition of "sporting use," and unnecessarily

adopts a more restrictive tone than is justified by both legislative intent, and judicial and common

societal experience to date.

Further, it fails to consider all the dynamics of the evolution of, and participation in, the lawful

possession and use of such weapons, only focusing on a narrow view of "shooting sports." These

interpretations risk running afoul with both the intent of Congress and the original intent of the Framers'

specificity found within the Second Amendment, and may stand at odds with the specific intent of the

Ninth and Tenth Amendments of the Constitution of the United States. Additionally, regulations derived

from such a narrow interpretation may unwittingly compromise the security and tranquility of the

People.

I. Definitions:

With respect to "sporting use," no clear definition is present within the established statutes. This, along

with language contained in subsequent regulations, creates an untenable legal vagueness. Additionally,there appears to be no clear-cut determination within the judicial record to qualify as such a definition.

The authority is delegated from the Treasury Secretary to the BATFE to determine such meaning as it

might apply to a vast array of possible circumstances - a most daunting obligation fraught with many

hazards.

Absent well established statutory or judicial definition one must refer to commonly used meanings,

citing particular sources:

Sport: an athletic activity requiring skill or physical prowess and often of a competitive nature, as

racing, baseball, tennis, golf, bowling, wrestling, boxing, hunting, fishing, etc., a particular form of this,

especially in the out of doors, and diversion; recreation; pleasant pastime.

(Modern Language Association (MLA): "sporting." Dictionary.com Unabridged. Random House, Inc. 25

May. 2012. .) (Emphasis added)

II. Word Origin & History

Sport -

c.1440, "pleasant passtime," from sport (v.). Meaning "game involving physical exercise" first recorded

1523. Original sense preserved in phrases such as in sport "in jest" (c.1440). Sense of "stylish man" is

from 1861, Amer.Eng., probably because they lived by gambling and betting on races. Meaning "good

fellow" is attested from 1881 (e.g. be a sport, 1913). The sport of kings was originally (1668)

war-making. Sportswear is from 1912. Sports car first attested 1928. Sportscast first recorded 1938.

Sportsman first recorded 1706. Sporting "characterized by conduct constant with that of a sportsman"

is attested from 1799 (e.g. sporting chance, 1897). Sportsmanship is from 1745. (Emphasis added)
http://dictionary.reference.com/browse/sportinghttp://dictionary.reference.com/browse/sportinghttp://dictionary.reference.com/browse/sportinghttp://dictionary.reference.com/browse/sporting


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(Modern Language Association (MLA): "sporting." Online Etymology Dictionary. Douglas Harper,

Historian. 25 May. 2012. .)

(The addition of the adjective "shooting" along with "sports" does nothing to restrict the above meaning

as it simply describes a type of sport no less valid than any others listed.)

III. Discussion:

As is readily observable, the term "shooting sports" meaning is extremely broad and encompasses a

great number of concepts including from "hunting" to "war making" along with a most generalized

grouping of often only mildly related activities, the most commonly agreed upon descriptor being,

"activity requiring skill or physical prowess."

Beyond the described historical "hunting" and "clay pigeon shooting" activities related in the report's

narrative, other more modern and diverse shooting sport activities also fall within the realm of the

stated definition. One of which resides within the area of "practical shooting" as is portrayed in this

article:

"Among the fastest growing shooting sports is 3-Gun. In 3-Gun competitions, a competitor tests his or

her skills with a handgun, rifle and shotgun in a dynamic course. Courses are mentally and physically

rigorous. And there is no chance for boredom here, since no two 3-Gun match courses are ever set up

the same way."

Further, the writer relates, "With its debut at the NRA National Rifle and Pistol Shooting Championships

at Camp Perry last summer, NRAs National Defense Match is another new option for practical shooters.

Focusing on proficiency with the rifle platforms commonly used for national and self-defense, the

National Defense Match course of fire seeks to test the skills necessary to be effective for those

missions. Initial reactions to the new match were overwhelmingly positive, so stay on the lookout forthis type of match coming to a range near you."

The writer goes on to observe, "More recently, in early 2011, the BATFE released its Study on the

Importability of Certain Shotguns. The study seeks to justify an import ban on certain shotguns based

on their suitability for sporting purposes. In developing a feature test for shotguns to be banned, the

BATFE ensnared many of the shotguns popular in practical shooting sports.

"Obviously, the types of semiautomatic rifles and shotguns the BATFE has (sic) banned, or has sought to

ban, from importation are suitable for sporting purposes, and are used in such a manner on a daily

basis in the practical shooting sports. So, in order to justify the bans, the BATFE created a definition of

sporting purposes that specifically excluded combat-type competitions.

" . . . With the enormous growth of practical shooting competitions, this definition would laughable if it

didnt impede the exercise of a fundamental right. And every time a shooter joins the ranks of the
http://dictionary.reference.com/browse/sportinghttp://dictionary.reference.com/browse/sportinghttp://dictionary.reference.com/browse/sporting


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athletes competing in practical shooting, the definition becomes more implausible. Competing formally

is one way to show the BATFE that these guns are suitable for sporting and should be recognized as

such." (Emphasis added)

http://www.ammoland.com/2011/10/18/arfcom-practical-tactical-shooting-sports/

I take exception with the author's closing statement. It should more accurately state that it's incumbent

on the BATFE to demonstrate that these "guns" are not suitable for the lawful sporting activity

described, as it is not required to proactively demonstrate that an item or behavior is legal, but must be

specifically demonstrated to not be legal by applicable statute.

No less than 30, national practical 3-Gun competitions are announced in just this one listing further

supporting a common use -http://www.ammoland.com/tag/three-gun-competitions/

IV. Common Use, Restrictive Language, and Removal of Disabilities:

With respect to the concept of "common use" the Supreme Court ruled in District of Columbia v. Heller

that firearms in common use are protected by the Second Amendment. More recently, in an October

4 opinion in the follow-up case of Heller v. District of Columbia (also known as Heller II) the U.S.

Appeals Court for D.C. noted, We think it clear enough in the record that semi-automatic rifles and

magazines holding more than ten rounds are indeed in common use, as the plaintiffs contend . . . ."

Clearly, the plain language meaning of the Courts' findings would necessarily extend to shotguns as well.

As noted in Heller, the Congress relaxed the restriction on magazine (weapon) capacity, so this cannot

be included in an objective assessment:

Originally the 1994 Act defined "large capacity ammunition feeding device" as "a magazine, belt, drum,

feed strip, or similar device . . . that has a capacity of, or that can be readily restored or converted to

accept, more than 10 rounds of ammunition;" however was repealed as referenced below:

*[(30), (31) Repealed. Pub. L. 103-322, title XI, Sec. 110105(2), Sept. 13, 1994, 108 Stat. 2000.]

*Pub. L. 103-322, title XI, Sec. 110105(2), Sept. 13, 1994, 108 Stat. 2000. d) Shotgun

*Pub. L. 103-322, title XI, Sec. 110105, Sept. 13, 1994, 108 Stat. 2000, provided that subtitle A (Secs.

110101-110106) of title XI of Pub. L. 103-322 (amending this section and sections 922 to 924 of this title

and enacting provisions set out as notes under this section) and the amendments made by that subtitle

were effective Sept. 13, 1994, and were repealed effective as of the date that is 10 years after thatdate.

Additionally, with respect to "Relief of Disabilities," the legislative action revising the terms "will

authorize" to "shall authorize" indicate a more restrictive intent on the part of Congress limiting certain

discretionary actions by The Attorney General and the BAFTE as the responsible agent:

"(d) The Attorney General shall authorizea firearm or ammunition to be imported or brought into the
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United States or any possession thereof if the firearm or ammunition -" . . . (3) is of a type that does not

fall within the definition of a firearm as defined in section 5845(a) of the Internal Revenue Code of 1986

and is generally recognized as particularly suitable for or readily adaptable to sporting purposes."

(Emphasis added)

(18 U.S.C. 925 : US Code - Section 925: Exceptions: Relief from disabilities)

Further, "For the purpose of this chapter -

"(a) Firearm

"The term ''firearm'' means (1) a shotgun having a barrel or barrels of less than 18 inches in

length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than

26 inches or a barrel or barrels of less than 18 inches in length . . . .

"(d) Shotgun

"The term ''shotgun'' means a weapon designed or redesigned, made or remade, and intended to be

fired from the shoulder and designed or redesigned and made or remade to use the energy of the

explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot)

or a single projectile for each pull of the trigger, and shall include any such weapon which may be readily

restored to fire a fixed shotgun shell."

(TITLE 26 - INTERNAL REVENUE CODE, Subtitle E - Alcohol, Tobacco, and Certain Other Excise Taxes;

CHAPTER 53 - MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER FIREARMS; Subchapter B

- General Provisions and Exemptions; PART I - GENERAL PROVISIONS , Sec. 5845. Definitions)

Clearly, the shotguns presently available for use for practical shooting sports, regardless of their

"appearance," reside outside the restrictive terms of statutory definition, and there exists no further

limiting terms within both the description above and case law.

"The 1986 amendment substituted the word 'shall' for 'may' in section 925(d), and therefore, mandated

the Secretary to authorize the importation of firearms falling within one of the four excepted categories.

Firearm Owners Protection Act, P.L. 99-308, 100 Stat. 459 (1986) (codified as amended at 18 U.S.C.A.

Sec. 925(d) (West 1988); H.Rep. No. 495, 99th Cong., 2d Sess. at 14 (1986), reprinted in 1986 U.S. Code

Cong. & Admin.News 1327, 1340 (the 1986 amendment '[o]pens up the importation of firearms by

mandating the Secretary to authorize importation of a firearm if there is a sporting purpose and

eliminat[es] the requirement that the importer has the burden of satisfying the Secretary of the

sporting purpose....').

". . . Senate report explains that Congress intended section 925(d)(3) to "curb the flow of surplus

military weapons and other firearms being brought into the United States which are not particularly

suitable for target shooting or hunting" to prevent such weapons being used for criminal means.

S.Rep. No. 1097, 90th Cong., 2d Sess. 80, reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2167.


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"Senator Dodd, stated:

"Title IV prohibits importation of arms which the Secretary determines are not suitable for research,

sport, or as museum pieces.... The entire intent of the importation section is to get those kinds of

weapons that are used by criminals and that have no sporting purpose." (Emphasis added)

(GUN SOUTH, INC., Plaintiff-Appellee v. Nicholas BRADY, et al. United States Court of Appeals, 11th

District, 877 F.2d 858)

V. Conclusion

The writer requests that all the above be taken into consideration prior to issuing a final determination

and subsequent regulation related to the Study at hand. Obviously, one cannot include merely the

physical appearance of a shotgun (or any other weapon) when arriving at logical and reasoned

regulation, but must comport with statutory wording, legal history, societal norms, and lawfully

established standards.

Respectfully Submitted,

Gary Long

P.O. Box 56

Hillsborough, NC 27278

Documents

BATFE Comment on Study for Importability of Shotguns