By Robert M. Hausman
Maryland AG: Rimfire Replicas Not Necessarily Assault Weapons
In a victory for marketers of popular .22 caliber replicas of centerfire military pattern rifles, Maryland’s Attorney General has issued a favorable opinion as to what constitutes a “copy” of a so-called “assault weapon.”
The issue was whether .22 caliber rimfire rifles that may cosmetically resemble firearms defined as “assault weapons” in the Annotated Code of Maryland, Public Safety Article § S-101, should be regulated under that section as “copies” of the therein listed center-fire models.
According to the AG’s office opinion, a copy must be similar “in its internal components and function to the designated weapon. Cosmetic similarity to an enumerated assault weapon alone would not bring a weapon within the meaning of the state’s “Regulated Firearms law.” The opinion also states that the Maryland State Police will make the initial decision as to whether the gun’s internal parts make it a “copy” of an “assault weapon.” The opinion was issued at the request of the state police with the active involvement of the Maryland Licensed Firearms Retailers Association.
The statutory definition of “regulated firearm” in Maryland’s Regulated Firearms law (mandating special sale regulations for so-called “assault weapons” or “regulated firearms”) specifies a list of designated assault weapons “or their copies.” The state police asked for an opinion on the meaning of the word “copies” in the law’s context.
For background, a person seeking to purchase, rent or transfer a regulated firearm in Maryland must submit an application for review and approval of the transaction by the Dept. of State Police. The statute defines “regulated firearm” to include two categories of firearms - handguns and “a firearm that is any of the following specific assault weapons or their copies, regardless of which company produced and manufactured that assault weapon...” referring to a long list of firearm makes and models. The statute does not further define the word “copies”.
The AG’s office noted that the list of “assault weapons” in the statute that could be the subject of a “copy” suggests that cosmetic similarity alone would not suffice. For example, three of the four firearms on the list are described by specific calibers. The specification of the caliber, the AG noted, indicates that an otherwise identical firearm of a different caliber would not be a regulated firearm.
More importantly, the AG found, the reference to “copies” of specific arms was intended to ensure that the requirements of the law could not be avoided simply by rebranding or superficially changing a named gun. This also suggests, the AG found, that “copies” was intended to relate to components and function; not simply appearance. “Interpreting ‘copy’ to include any firearm that merely looked like one of the enumerated firearms would run contrary to the choices made by the legislature,” the AG wrote.
“Consistent with the General Assembly’s apparent intent to create a definition with an eye toward the function of the weapon, a ‘copy’ would include a firearm whose internal components and function, necessary to the operation of the firearm, are similar to those of one of the specifically enumerated assault weapons. As the agency charged with administering the regulated firearms law, the Dept. of State Police must make that assessment,” the AG concluded. The Maryland State Police have since formed a committee to study the issue.
New Rule Gives ATF Director Ultimate Decision-Making Authority in FFL Matters
The Bureau of ATF&E has initiated a ruling which provides ATF headquarters oversight of all administrative actions prior to notices being sent to the licensee. The ruling establishes the final approval authority for denial of applications for licenses, suspension or revocation of licenses, or imposition of civil fines.
The rule adopted amends the regulations of ATF to delegate to the Director of ATF the authority to serve as the deciding official regarding the denial, suspension, imposition of a fine, or revocation of FFLs. The rule allows the ATF Director to delegate to another ATF official the authority to decide a revocation or denial matter. Such flexibility, ATF says, is intended to allow ATF to more efficiently conduct denial, suspension or revocation hearings, and make the determination whether to impose a civil fine. The rule is expected to give ATF the ability to ensure consistency in decision-making and to address case backlogs, the agency says.
The regulations in Subpart E of Part 478, §§478.71-78, relate to proceedings involving federal firearms licensees, including the denial, suspension, and revocation of a license. The Dept. of Justice published an interim rule with request for comments at 74 FR 1875 on January 14, 2009 with the comment period ending April 14, 2009. The new rule essentially amends ATF’s regulations to re-designate the ATF Director, as opposed to the Director of Industry Operations (DIO), as the deciding official in matters dealing with the denial, suspension or revocation of federal firearms licenses, and the imposition of a civil fine. The ruling allows the Director to re-delegate this authority though issuance of a delegation order, not through regulation.
ATF contends this approach is consistent with other regulations in Part 478. It cites, for example, § 478.144 provides that the Director is the deciding authority with respect to applications for relief from firearms disabilities. Further, ATF says these changes to the decision-making and related delegation authority were the only substantial changes made by the interim rule. All other aspects of the ATF processes, including notice and review provisions, remain the same.
In response to the aforementioned comment period, ATF received three comments. Two were said to support the interim regulations, while a third expressed opposition. The opposing commenter expressed a concern that under the interim regulations the Director’s decision is not subject to review.
According to ATF, this opposing commenter wrote: “The only other times in the state of American government, aside from the Presidency, where one person is afforded the opportunity to make decisions affecting others without a system of checks and balances is by a judge. Even then, there is an appeals process by which this one individual’s interpretation of legal circumstances may be reviewed.
“...To afford the director of a government agency, or any other appointed individual for that matter, the ability to ‘legislate’ freely as he deems necessary regarding the denial, suspension, or revocation of a federally issued license seems not only unconstitutional, but potentially unethical if this one man’s ruling is subject to a political agenda.”
ATF’s response to this dissenting commenter, written by James P. Ficaretta, ATF Enforcement Programs and Services, and published in the Federal Register, begins by stating that the due process system of checks and balances is already incorporated into the procedures for denying or suspending FFLs. Prior to any adverse decision, ATF notes, the agency must provide notice to the affected applicant or license holder and provide that person with an opportunity to present evidence in a hearing.
Before the interim rule became effective, the DIO for each field division had the authority to issue the final decision. The interim rule vests this same authority to issue a final decision in the ATF Director. The Director may, in turn, delegate that authority to headquarters officials, field officials, or some combination thereof.
ATF further details that under 18 U.S.C. 923(f), a denied applicant still has the opportunity for federal court review of the decision. The court could overrule ATF’s decision in a case. ATF says the rule change simply elevates final decision-making authority within the ATF to the Director.
Kenneth E. Melson, ATF’s Deputy Director, issued a statement saying, “ATF, in an effort to ensure consistency within the FFL community, initiated the ruling which provides ATF headquarters oversight of all administrative actions prior to notices being sent to the licensee.”
Copies of the interim rule, the comment received and the final rule are available for public inspection by appointment during business hours at the ATF Reading Room, Room 1E-063, 99 New York Avenue, NE, Washington, DC 20226, Tel: (202) 648-7080.
False Rumors on U.N. Small Arms Treaty
False rumors are circulating on the Internet to the effect that Secretary of State Hillary Clinton has signed a U.N. small arms treaty. Clinton has not signed any such treaty as no such treaty has yet been negotiated.
The U.N. Arms Trade Treaty will be drafted sometime before now and 2012, and even if signed, would not take effect in the U.S. until it was ratified by the Senate.
All that has happened so far is that the Obama Administration has announced its support for the treaty. The U.N. claims that guns used in armed conflicts cause 300,000 deaths worldwide annually. The solution it offers to keep rebels from getting guns is to make the global arms pool smaller through government action. Proposed is that signatory countries be required to “prevent, combat and eradicate” various classes of firearms to undermine “the illicit trade in small arms.” Inherent in this would be confiscation of personally-held firearms. The U.N. treaty will lead to more American gun control.
“After the treaty is approved and it comes into force, you will find that it has this implication or that implication and it requires the congress to adopt some measure that restricts ownership of firearms,” former U.S. ambassador to the U.N., John R. Bolton warns.
“The Obama Administration knows it cannot obtain this kind of legislation purely in a domestic context. They will use an international agreement as an excuse to get domestically what they couldn’t otherwise,” Bolton concludes.
Kahr Arms Acquires Magnum Research
Kahr Arms, the producer of quality, compact pistols, has announced its purchase of Minnesota-based firearms manufacturer, Magnum Research, Inc., best known for its Desert Eagle pistol. This latest acquisition follows up on Kahr’s buy of Auto-Ordnance some years ago, producer of Thompson submachine gun replicas in semi-auto.
Magnum Research, Inc. was founded in 1979 and its current line includes: Desert Eagle pistol in .50 AE, .44 Magnum and .357 Magnum; Baby Desert Eagle “Fast Action” pistol 9mm and .40 S&W; Desert Eagle 1911; Micro Desert Eagle in .380 ACP; BFR revolvers in .44 Mag., .45LC/.410 and .45-70, Mountain Eagle MAGNUM LITE rifle in .22-250, .223, .30-06, .280 and 7mm; and the MAGNUM LITE rifle in .22 LR, .22 WMR, and .17 MACH-2.
NRA’s Cox Reviews Achievements of Past Decade
During the 2010 NRA’s Annual Meetings & Exhibits in Charlotte, North Carolina, Chris W. Cox, Executive Director of the NRA’s lobbying arm, the Institute for Legislative Action, reviewed accomplishments made for the right to keep and bear arms in an address to the NRA membership.
Noting that while the clock cannot be turned back on Election Day 2008, ten years ago, almost to the day, NRA President Charlton Heston stood in Charlotte and called on NRA members to Vote Freedom First!
Following Heston’s advice, voters on Election Day 2000 stopped Al Gore and the vote later enabled the confirmation of Attorney General John Ashcroft who changed the position of the federal government in support of the Second Amendment as an individual right. Just the year before, Bill Clinton’s Justice Department had said there was no individual right to arms. In 2002, voters elected a Congress that let Bill Clinton’s ban on so-called “assault weapons” expire. By voting freedom first in 2004, Americans kept John Kerry out of the White House, kicked Tom Daschle out as Senate Majority Leader and ended seven years of roadblocks to give lawsuit protection to the firearms industry.
One vote for President Bush secured two pro-gun votes on the U.S. Supreme Court through the confirmations of Chief Justice John Roberts and Justice Sam Alito. This resulted in the Heller decision confirming the right to keep and bear arms.
Cox additionally noted that right-to-carry laws have been improved in seven states so far this year. Calling self-defense reform, real health care reform, Cox detailed:
- Castle Doctrines are in effect in 24 states;
- Laws prohibiting Katrina-type gun confiscations have been passed in 28 states; and
- Reciprocity is spreaing across the country.
The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. Visit www.FirearmsGroup.com. He may be reached at: FirearmsB@aol.com.
This article first appeared in Small Arms Review V14N1 (October 2010) |
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