Executive Orders and AWB

[Slappy McGee]

I don't quite understand how EO's are implemented, or what criteria are required for the president to issue an EO versus creating a law through the normal process and therefore have a few questions:

1) I keep hearing presidental candidates asked if they would "reauthorize the AWB." This implies the expired AWB is sitting around, and a stroke of the presidental pen would put it back into effect. Is this actually the case or just a badly worded question?

2) My understanding is that Bush 1.0 created the "import ban" via an EO and it was somehow connected to presidental powers related to foreign trade. Any truth to that correlation?

3) Could the next president impose new firearms regulation via an EO? What would be possible via an EO:

a) A ban on imported ammunition
b) A ban on imported semi-auto rifles or handguns
c) Outright AWB ban
d) Outright semi-auto or complete handgun ban

4) How is an EO repealed? Supreme Court or can a standard law supercede it?

Thanks for any clarification!

 

[buzz_knox]

1. It's somewhat of a bad question. Congress can introduce a new AWB or can renew the prior AWB, but it would have a new starting date and thus effectively be a new bill.

2. This is accurate. After the Stockton shooting in '89, GHWB issued an EO restricting imports of assault weapons by having ATF tighten up the sporting purposes test. Congress codified it later.

3. A president can effectively eliminate all imports by having ATF further tighten the sporting purposes test (i.e. nothing but single shot .356TSW rifles with 30 inch barrels are legal). This could be contested but it has to be shown it's arbitrary and capricious to make any headway.

4. The President is charged with enforcing current laws. EOs come into play because laws generally give considerable discretion to the President and the implementing agencies as to how the laws are to be carried out. The EOs allow the President to direct how the agencies are to act. The Supremes could strike it down as not being within the scope of authority or unconstitutional, or Congress could override it by changing the underlying law. Neither is guaranteed to occur.

 

[Slappy McGee]

Thanks for the helpful response!

Could the president issue an EO causing the BATFE to stop all firearms transactions that do not meet a newly expanded "sporting test?" The entire EO process seems riddled with grey areas, especially if the president can establish a new gov't agency via an EO, and then also set its policy via EO.

In theory, couldn't a president pass an EO requiring the BATFE to collect all privately owned firearms without congressional oversight?

It seems EO's are more a matter of "what can I get away with" than something that is codified by law and/or subject to meaningful oversight. Is this interpretation correct or am I overstating things?

 

[lawson4]

Can a POTUS negate or recind an EO of a previous POTUS?

lawson4

 

[DrewH]

Could the president issue an EO causing the BATFE to stop all firearms transactions that do not meet a newly expanded "sporting test?" The entire EO process seems riddled with grey areas, especially if the president can establish a new gov't agency via an EO, and then also set its policy via EO.

In theory, couldn't a president pass an EO requiring the BATFE to collect all privately owned firearms without congressional oversight?

It seems EO's are more a matter of "what can I get away with" than something that is codified by law and/or subject to meaningful oversight. Is this interpretation correct or am I overstating things?

You are overtstating things considerably. Executive Orders are the President's way of interpreting existing law, in effect of saying how policy will be conducted in accordance with law. The President can't make law.

In the case of firearms imports, they are all governed by a part of the Gun Control Act of 1968, which says, in one or two sentences, that no firearms (or receivers, frames or barrels of such firearms) can be imported for civilian purchase unless they are "sporting".

Laws are quite often vague. In this case the law nowhere defines what "sporting" is. A thicket of EOs, regulations, and simple policies have grown up over the years defining "sporting". They are largely nonsensical, but unless the law is repealed or overturned they do have a basis in the law.

 

[Jim K]

Yes, a president can cancel a previous president's EO, but it is not commonly done.

In many cases, as in GCA '68, Congress says to the Executive Branch, in effect, "we want to allow import of firearms that are either sporting (i.e., hunting) types or can be used for that purpose. You, Mr. President, or your people, can decide just what that means in terms of particular weapons."

In the case of China, the import law gives the president even greater leeway, as Congress has never fully backed free trade with that nation for political reasons, so G.H.W. Bush had only to order importation of those rifles from that country stopped.

Jim

 

[Slappy McGee]

Thanks all, for the clarifications.

 

[ProficientRifleman]

Bush the Elder implemented an import suspension by directing the SecTres to hold the imports up for 60 days. This gave Congress time to write a law (an amendment to the Gun Control Act of 1968) and stop the importation.

The Federal AWB would have to be re-authorized by Congress and signed by the President in order to be law again. The press is asking the candidates if they favor the re-authorization of the ban.

I own a gun shop. My customers all say the same thing. They see NO friendly faces in the presidential candidate field.

Contingency buying is in effect.

 

[mekender]

a presidential EO that was too sweeping, I.e. one that banned all guns... could put the president in jeopardy of being impeached for failing to uphold his oath to the constitution... so it would be very unlikely for a president to get too sweeping with EOs...

 

[DrewH]

Bush the Elder implemented an import suspension by directing the SecTres to hold the imports up for 60 days. This gave Congress time to write a law (an amendment to the Gun Control Act of 1968) and stop the importation.

I don't believe they actuallly passed such a law. The definition of sporting is still entirely up to the executive. The ATFE has implemented many regulations defining sporting since that 1989 EO forbidding imports.

What you might be thinking of is that Congress passed a law forbidding the import of parts that you would than assemble to make a non-sporting firearm.

Naturally, Congress didn't really define what they meant by import. ATFE's regulations on what constitutes "import" are the familiar American parts list needed for AKs, etc. (FWIW they could have been much worse than they are.)

 

[Bartholomew Roberts]

I don't believe they actuallly passed such a law. The definition of sporting is still entirely up to the executive.

No, Congress passed a law making the 1989 import restrictions part of statute. The President can no longer reverse the previous EO.

 

[ProficientRifleman]

What you might be thinking of is that Congress passed a law forbidding the import of parts that you would than assemble to make a non-sporting firearm.

No, I am thinking of section 922 of the GCA which was amended in 1989 to stop the importation of your nice HK-91 and your Beretta AR-70.

This was LAW passed by Congress. It was amended in 1993, under Clinton, to read how it does now, with the "no more than 10 imported parts" part in it.

PR

 

[DrewH]

No, Congress passed a law making the 1989 import restrictions part of statute. The President can no longer reverse the previous EO.

No, I am thinking of section 922 of the GCA which was amended in 1989 to stop the importation of your nice HK-91 and your Beretta AR-70.

This was LAW passed by Congress. It was amended in 1993, under Clinton, to read how it does now, with the "no more than 10 imported parts" part in it.

I did some research and disagree. What is sporting was never written into law, or even regulation as far as I can tell. Now, I could be wrong of course, but I would appreciate a cite to US Code or even a regulation that defines "sporting"

Here is US Code 925(d), from the GCA of 1968. Part 3 lays out the sporting use rule.

(d) The Attorney General shall authorize a firearm or ammunition to
be imported or brought into the United States or any possession thereof
if the firearm or ammunition--
(1) is being imported or brought in for scientific or research
purposes, or is for use in connection with competition or training
pursuant to chapter 401 of title 10;
(2) is an unserviceable firearm, other than a machinegun as
defined in section 5845(b) of the Internal Revenue Code of 1986 (not
readily restorable to firing condition), imported or brought in as a
curio or museum piece;
(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, excluding surplus military
firearms, except in any case where the Attorney General has not
authorized the importation of the firearm pursuant to this
paragraph, it shall be unlawful to import any frame, receiver, or
barrel of such firearm which would be prohibited if assembled; or
(4) was previously taken out of the United States or a
possession by the person who is bringing in the firearm or
ammunition.

Here is US Code 922(r) that denies imports of parts used to assemble non-sporting firearms. This was passed in the early 1990s, IIRC:

(r) It shall be unlawful for any person to assemble from imported
parts any semiautomatic rifle or any shotgun which is identical to any
rifle or shotgun prohibited from importation under section 925(d)(3) of
this chapter as not being particularly suitable for or readily adaptable
to sporting purposes except that this subsection shall not apply to--
(1) the assembly of any such rifle or shotgun for sale or
distribution by a licensed manufacturer to the United States or any
department or agency thereof or to any State or any department,
agency, or political subdivision thereof; or
(2) the assembly of any such rifle or shotgun for the purposes
of testing or experimentation authorized by the Attorney General.

Here is Code of Federal Regulations 478.39 (so a regulation), which defines 992(r) further with the parts count:

TITLE 27--ALCOHOL, TOBACCO PRODUCTS, AND FIREARMS

CHAPTER II--BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES,
DEPARTMENT OF JUSTICE

PART 478_COMMERCE IN FIREARMS AND AMMUNITION--Table of Contents

Subpart C_Administrative and Miscellaneous Provisions

Sec. 478.39 Assembly of semiautomatic rifles or shotguns.

(a) No person shall assemble a semiautomatic rifle or any shotgun
using more than 10 of the imported parts listed in paragraph (c) of this
section if the assembled firearm is prohibited from importation under
section 925(d)(3) as not being particularly suitable for or readily
adaptable to sporting purposes.
(b) The provisions of this section shall not apply to:
(1) The assembly of such rifle or shotgun for sale or distribution
by a licensed manufacturer to the United States or any department or
agency thereof or to any State or any department, agency, or political
subdivision thereof; or
(2) The assembly of such rifle or shotgun for the purposes of
testing or experimentation authorized by the Director under the
provisions of Sec. 478.151; or
(3) The repair of any rifle or shotgun which had been imported into
or assembled in the United States prior to November 30, 1990, or the
replacement of any part of such firearm.
(c) For purposes of this section, the term imported parts are:
(1) Frames, receivers, receiver castings, forgings or stampings
(2) Barrels
(3) Barrel extensions
(4) Mounting blocks (trunions)
(5) Muzzle attachments
(6) Bolts
(7) Bolt carriers
(8) Operating rods
(9) Gas pistons
(10) Trigger housings
(11) Triggers
(12) Hammers
(13) Sears
(14) Disconnectors
(15) Buttstocks
(16) Pistol grips
(17) Forearms, handguards
(18) Magazine bodies
(19) Followers
(20) Floorplates

[T.D. ATF-346, 58 FR 40589, July 29, 1993]

Here is a June 25 e-mail from ATFE that talks about importing. Note that the sporting definitions do not even seem to be regualtions.

"Thank you for visiting ATF's Website. I apologize for the delay in responding,
but our FTB was backlogged with inquiries.

As stated on our site, generally, we do not answer technical questions via
e-mail, but I contacted our Firearms Technology Branch (FTB) and was advised the
following:

"Modifications to Imported SKS and AK Type Rifles

ATF's Firearms Technology Branch (FTB) received many letters asking about the
legality of making modifications to imported semi-automatic rifles and shotguns.

The Gun Control Act of 1968 (GCA), 18 U.S.C. Section 922®, specifically states
the following:

It shall be unlawful for any person to assemble from imported parts any
semiautomatic rifle or any shotgun which is identical to any rifle or shotgun
prohibited from importation under the Section 925(d)(3)...as not being
particularly suitable for or readily adaptable to sporting purposes...

Also, 27 C.F.R. Section 478.39 (formerly 178.39) states-

"...(a) No person shall assemble a semiautomatic rifle or any shotgun using more
than 10 of the imported parts listed in paragraph © of this section if the
assembled firearm is prohibited from importation under section 925(d)(3) as not
being particularly suitable for or readily adaptable to sporting purpose.....

( The provisions of this section shall not apply to:

(1) The assembly of such rifle or shotgun for sale or distribution by a
licensed manufacturer to the United States or any department or agency thereof
or to any State or any department, agency, or political subdivision thereof; or
(2) The assembly of such rifle or shotgun for the purposes of testing or
experimentation authorized by the Director under the provisions
of[§478.151(formerly 178.151)]; or (3) The repair of any rifle or shotgun which
had been imported into or assembled in the United States prior to November 30,
1990, or the replacement of any part of such firearm.

© For purposes of this section, the term imported parts [tabulated below]
are:


(1) Frames, receivers, receiver
castings, forgings, or castings.
(2) Barrels.
(3) Barrel extensions.
(4) Mounting blocks (trunnions).
(5) Muzzle attachments.
(6) Bolts.
(7) Bolt carriers.
(8) Operating rods.
(9) Gas pistons.
(10) Trigger housings.
(11) Triggers.
(12) Hammers.
(13) Sears.
(14) Disconnectors.
(15) Buttstocks.
(16) Pistol grips.
(17) Forearms, handguards.
(18) Magazine bodies.
(19) Followers.
(20) Floor plates.

As a result of a 1989 study by the U.S. Treasury Department regarding the
importability of certain firearms, an import ban was placed on military-style
firearms. This ban included not only military-type firearms, but also extended
to firearms with certain features that were considered to be "nonsporting."
Among such nonsporting features were the ability to accept a detachable
magazine, folding/telescoping stocks, separate pistol grips, ability to accept a
bayonet, flash suppressors, bipods, grenade launchers, and night sights. The
exception for this criteria is curios and relics in their original military
configuration i.e. the Yugoslavian SKS 59/66. Yugoslavian SKS 59/66 rifles can
be modified by removing offending features (as in the State of California) but
not adding features.

Determinations regarding the suitability for sporting purposes are made on a
case-by-case base and often will require review by the Firearms Technology
Branch. Rifles that are prohibited from importations include:

1. Semiautomatic versions of machineguns
2. Rifles chambered to accept a centerfire cartridge case having a length of
2.25 inches or less (includes .223 and 7.62 X 39); AND
3. Rifles that have the ability to accept a detachable large capacity magazine
originally designed and produced for a military assault rifle or be easily
modified to accept such a magazine with only minor adjustments to the rifle.

Non-sporting features may be removed from SKS and AK type rifles without
violating 922®, i.e. bayonet, bayonet lug, bipod, grenade launcher, flash
suppressor, and night sight. Any additions to SKS and AK type rifles would
make them nonsporting firearms that would be in violation of 922®. These
additions include: replacing the thumbhole stock with a pistol grip and
military style stock and/or modifying the firearm to accept a high capacity
magazine.

In order to modify SKS or AK type rifles and avoid any violations of 922®, you
will have to replace the foreign parts, except for 10, with U.S.-made parts. As
previously stated, no more than 10 of the above 20 foreign parts can be
installed after the modification.

You can remove the Night Sights, Grenade Launcher, Grenade Launcher
Sight, Bayonet, and Bayonet lug without repercussion as removal of items has no
bearing under Federal law."

Your proposal makes the following changes:

(1) Frames, receivers, receiver
castings, forgings, or castings.
(2) Barrels.
(3) Barrel extensions. None on SKS
(4) Mounting blocks (trunnions). None on SKS
(5) Muzzle attachments. Removed
(6) Bolts.
(7) Bolt carriers.
(8) Operating rods. None on SKS
(9) Gas pistons. Replaced with US part
(10) Trigger housings.
(11) Triggers.
(12) Hammers.
(13) Sears.
(14) Disconnectors.
(15) Buttstocks. Replaced with US part
(16) Pistol grips. None on SKS
(17) Forearms, handguards. Replaced with US part
(18) Magazine bodies. Replaced with US part
(19) Followers. Replaced with US part
(20) Floor plates. Replaced with US part

The resulting firearm would have items 1, 2, 6, 7, 10, 11, 12, 13, and 14

Since the proposed rifle would only have 9 imported parts, the modifications
would be legal under Federal law."

If you have any further questions, please call them on 304-260-1700.

 

[ProficientRifleman]

ok, maybe...

I was wrong...


But I FELT like I was right!

 

[DrewH]

LOL.

It's scary that it is apparently totally up to bureacrats ruled by politicians to define sporting. That is what Clinton did in '97 or so, ordered ATF to decide that all "large capacity military magazine" guns were unsporting. Hence the single stack AKs that are imported and converted nowadays.

I guess on the upside we could sweep it all away with that pro-gun President. Sadly I think we might be waiting a while

I do think the ATFE might have relaxed it a tad to bring in the FN FS2000 and PS90. Not sure, though.

 

[RP88]

The ATF is as laxed as the president usually from what I've noticed. Bush hasnt cared about guns in the past eight years, so alot has gotten better, even if only temporarily. Not even congress cared (never re-authorized their AWB). Ever since the shootings and effective duping, guns are back in the mainstream. Guns seemingly have become a state issue more than anything else nowadays. Hopefully that doesnt change.

 

[MechAg94]

That is what happens when your congressmen get lazy and don't write a good law.

Honestly, when you start trying to figure out how to restrict some types of semi-auto guns, you pretty much always end up with stupid definitions that are very unclear. This was discussed on another site recently and the guy thinking you could do it basically wrote a definition that could include a pump action shotgun. In actuality, he was thinking of full auto guns, but didn't know enough about the different types to make a good definition. A few of us laid out the types.

 

[Bartholomew Roberts]

I didn't say that sporting was defined - just that Congress had made the 1989 restrictions part of statute (as evidenced by 922(r) and the legislative history around it). The amendment was passed by a female legislator from Washington if you want to look into it more.

 

[Slappy McGee]

So to overturn the 1989 import restrictions would require a new law versus a new EO redefining "sporting," is that correct?

 

[Bartholomew Roberts]

So to overturn the 1989 import restrictions would require a new law versus a new EO redefining "sporting," is that correct?

You can make an argument that it can be done only with an EO. That argument would be that since "sporting purposes" isn't defined clearly, that definition is still subject to executive discretion.

The counter to that argument would be that clearly Congress wrote 922(r) based on the 1989 import ban standards and that these standards featured prominently in the legislative history. As a result, you can make a strong argument the Executive does not have discretion to redefine "sporting purposes" to contravene the meaning Congress intended.

From a practical standpoint, no President is going to issue an EO contravening a previous EO unless he is relatively certain that he has the votes in Congress to support it. Otherwise Congress is likely to pass a new law making it more clear what he can or cannot do and he might even lose some of the discretion he has.

 

[Slappy McGee]

Gotcha. Thanks again, this has been a very helpful discussion.

 

[DrewH]

The Congresswoman was Jolene Unsoeld, IIRC. I remember the law was made less restrictive somehow as they passed, the anti-gunners didn't get all they wanted and were unhappy, although hard to see why on reading them.

I believe the E.O. only temporarily stopped the import of these guns. ATF (at the time) evaluated the standards and announced they would forbid imports of new rifles under their new criteria. I found a press article with the ATF director announcing the new sporting criteria later in 1989.

In other words, these standards are not really laid out by E.O., that was a temporary import ban in certain rifles, they are internal criteria as laid out by ATF.

The 1989 standards have already been re-defined once. Late in the Clinton administration, around 1997, anti-gunners started complaining that "sporterized" imported rifles were still too "assaulty" (sorry, hard to characterize illogic) and the administration made ATF write a report justifying a subsequent ban on large capacity military magazine rifles (using cartridges shorter than 2.25", i.e. .223 and 7.62x39mm) There may have been another E.O. to ban imports temporarily while ATF studied it as well.

So, I think the executive has discretion to make them less restrictive in theory-but politically, as Bartholemew points out there would be absolute hell to play. Clinton or Obama would never loosen them, and McCain, who is as pro-gun as we are likely to get (and is similar to Bush on guns, in my opinion) is highly unlikely as well.

Sporting criteria are also applied to handguns There is the points system implemented in 1968 in handguns, and certain "assault style" machine pistols, H&K SP89s and Spectres? in particular were forbidden for import in the early 1990s. I remember that one because my SP89 I had just sold for $900 instantly jumped in value to $3000 I note that the B&T TP9s are being imported, so again there may be some very subtle loosening.