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Manufacturing AP Ammo - 18 USC 922a(7), a(8) questions

Discussion in 'Legal' started by coloradokevin, Feb 6, 2018.

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  1. coloradokevin

    coloradokevin Member

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    I felt this was more appropriate for a new thread, but the questions I have about these sections of law came from the story about the arrest of Douglas Haig for selling Armor Piercing ammo to Stephen Paddock (the Las Vegas shooter).

    Here we go:

    1) What qualifies as "manufacturing" AP ammo?
    2) Are the projectiles considered ammunition in this sense, or just the loaded cartridge when complete and ready to fire?
    3) Is it legal to possess AP ammo?
    4) Is it legal to personally load, for personal use, an AP bullet into a completed cartridge, or is this "manufacturing"?
    5) What is the exact legal definition of "armor piercing ammo"?


    Honestly, I never really looked into these laws before, because it really didn't matter a whole lot for anything I was doing. But, after reading the affidavit for arrest of Douglas Haig, I sort of feel like I had a misunderstanding of this law, and I'm guessing that a lot of gun show sellers I've encountered were probably in violation of these laws.

    My understanding had always been along the lines of:

    It's lawful to have/buy/sell surplus AP ammo, and it's legal to reload AP bullets for personal use, just so long as this isn't pistol ammunition (which was somehow illegal in any AP form).

    But, that italicized and summarized version of my understanding came from information told to me over the years by various individual sellers. I never really researched it, because I don't really shoot AP ammo (it's a wasteful way to destroy the steel plate targets I paid good money for).

    Anyway, it has been a while, but during the mid and late 1990's and early 2000's I used to frequent a lot of gun shows. It seems like every show I attended had someone (often multiple folks) selling AP ammo, though much of this ammo was surplus stuff. Selling surplus AP ammo wouldn't seem to violate section a(7) of 18 USC 922, but it still appears to violate a(8).

    There were also a lot of people at these shows selling bags of black-tipped AP bullets (projectiles only), mostly in the .308 size. These were clearly being sold to reloaders. A lot of these vendors would even keep magnets on their sales tables to prove to people that the bullets had steel cores.

    So, where's the real legal line in all of this?

    The sections of law I mentioned above seem pretty clear that "armored piercing ammunition" is illegal to manufacture or sell (save for people doing so to the government), but it doesn't really define what "armor piercing" means. Also, the definition of "manufacturing" that seems to be associated with these laws implies that someone is doing so for commercial purposes.

    Does that mean that a buyer of a bag of AP bullets is legally allowed to load them for personal use? I'm having trouble believing that's the case when a person who is building an SBR for personal use is still "manufacturing" that rifle in the legal sense, and must comply with NFA laws and file a Form 1 as a manufacturer of such a gun.

    After seeing this stuff sold for a decade or more at dozens of gun shows, I kind of wonder how this could all be so illegal!
     
  2. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Here's the statutory definition for the purposes of the Gun Control Act (18 USC 921(a)(17)):


    So the definition for the purposes of the law is non-intuitive.
     
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  3. coloradokevin

    coloradokevin Member

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    But, that does fit with what I remember about handgun ammunition, and I seem to recall now that I have read that part before. So, where's the rifle part that covers the arrest of this individual?
     
  4. Frank Ettin

    Frank Ettin Moderator Staff Member

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    I'm not sure there's a nice, clean answer. And this is likely to become a hot issue if Haig is indicted and bound over for trial. I'm sure that Haig's defense will be challenging the government's characterization of the ammunition as armor piercing as defined in the statute.

    But ATF has in the past taken a position that ammunition can be illegal, armor piercing ammunition if "...it may be used in a handgun."
     
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  5. rodregier

    rodregier Member

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    And just to make it interesting there are also handguns non-exclusively available for the following "rifle" cartridges:
    .50 BMG
    .308 Win / 7.62 NATO
    7.62x39
    .223 Rem/5.56 NATO
    etc
     
  6. F-111 John

    F-111 John Member

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    If you recall, the ATF tried to implement a ban on M855 'Green Tip' 5.56mm ammunition in 2015, but backed off under tremendous public pressure. The sole justification was that it could be used in AR pistols.

    The intent of banning armor piercing handgun ammunition is to protect the lives of law enforcement that use soft body armor under their uniforms, but ignores the fact that almost any 5.56mm/.223 ammunition can defeat most soft body armor, so banning rifle ammunition with steel core penetrators does nothing to protect the lives of law enforcement from a projectile fired from an AR pistol.
     
  7. alsaqr

    alsaqr Member

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    Anyone remember the huge political fight over KTW Teflon coated "cop killer bullets" in the mid 1980s? That brought on the federal Law Enforcement Officers Protection Act.

    Two rounds were exempt from regulation: The .30 caliber M2 armor piercing round and the 5.56mm SS109/M855.
     
    Last edited: Feb 7, 2018
  8. alsaqr

    alsaqr Member

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    Years ago a BATFE agent told me that anyone loading an armor projectile into a complete round is "manufacturing". Manufacturing armor piercing ammunition requires a class 10 license.

    See summary:

    https://www.govtrack.us/congress/bills/99/hr3132/summary

    Haig is also charged with conspiracy.
     
    Last edited: Feb 7, 2018
  9. rfscjeep

    rfscjeep Member

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  10. CapnMac

    CapnMac Member

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    Recall, the furor here is over the manufacture of ammunition for retail sale without a 10 FFL.

    The fact that some of that ammo may have been "armor piercing" is actually secondary.

    It's not about possession, it's selling without a license.
     
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  11. alsaqr

    alsaqr Member

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    Not really. Type 6 and Type 7 licenses allow the manufacture of ammunition, except for armor piercing. The manufacture of armor piercing ammunition requires a Type 10 license. for the manufacture of destructive devices.

    "Type 10: Manufacturer of Destructive Devices, Ammunition for Destructive Devices, or Armor Piercing Ammunition".

    https://www.federallicensedefense.com/alcohol-tobacco-firearms-and-explosives-permits-and-licenses
     
  12. rfscjeep

    rfscjeep Member

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    This from "ATF FRAMEWORK FOR DETERMINING WHETHER CERTAIN PROJECTILES ARE “PRIMARILY INTENDED FOR SPORTING PURPOSES” WITHIN THE MEANING OF 18 U.S.C. 921(a)(17)(C)"
    "...during the final vote on LEOPA, Congress specifically rejected an amendment that would have limited the definition of armor piercing ammunition to ammunition “intended” to be used in a handgun, thereby exempting “standard rifle ammunition.”1 As a result, rather than limiting the definition to the manufacturer’s “design” or “intent,” the final bill passed by Congress clearly expanded the definition of armor piercing ammunition to include any ammunition containing the specified metal content “which may be used in a handgun.” This definition has remained unchanged since enactment of LEOPA in 1986."
    "Between 1986 and 2011, ATF received few exemption requests for armor piercing ammunition. In 1986, ATF exempted 5.56 mm (.223) SS109 and M855 “green tip” ammunition containing a steel core. Similarly, in 1992, ATF exempted .30-06 M2AP cartridges. Since 2011, however, ATF has received approximately 30 exemption requests for armor piercing ammunition. Several developments since 1992 have spurred the influx of exemption requests."

    My interpenetration of this is the ATF decided that all ammunition that meets the "specified metal content" of AP is illegal to manufacture or import, except that what they specifically exempt.

    I think they only looked / considered AP ammo that was currently being produced or imported
    5.56 exempted because no handgun had been produced in that caliber at that time
    M2AP exempted in 1992 when they decided it was a "sporting purpose"

    Reloading ammo is considered manufacturing
    Reloading for personal use is legal with out a license, but I think ATF will consider any round that you produce that is not fired by yourself to be manufacturing with out a license. (Father, son, friend, shooting partner, trap teammate).

    If you read & interpenetrate ATF code yourself & think its within your legal right to reload a 35 whelen in AP and go out to the range & post a youtube video of shooting a engine block, my guess is you might get a letter from ATF.
    If you loan/give/ or let someone steal it & they commit a act of terrorism with it, your probably going to have a indictment with your name on it.
     
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  13. alsaqr

    alsaqr Member

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    "Makes it unlawful for any person to manufacture or import armor-piercing ammunition."

    https://www.govtrack.us/congress/bills/99/hr3132/summary

    "922. Unlawful acts

    (a) It shall be unlawful—


    (7) for any person to manufacture or import armor piercing ammunition, unless—

    (A) the manufacture of such ammunition is for the use of the United States, any department or agency of the United States, any State, or any department, agency, or political subdivision of a State;

    (B) the manufacture of such ammunition is for the purpose of exportation; or

    (C) the manufacture or importation of such ammunition is for the purpose of testing or experimentation and has been authorized by the Attorney General;"

    https://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/html/USCODE-2011-title18-partI-chap44-sec922.htm
     
    Last edited: Feb 8, 2018
  14. F-111 John

    F-111 John Member

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    The operative definition of armor piercing ammunition is still "may be used in a handgun." Since many rifle caliber handguns exist, even for the .50 BMG, almost any 'rifle' round may be used in a handgun and thus must have a sporting purpose exemption for projectiles that meet the armor piercing construction criteria.

    The ATF has granted exemptions to calibers for which the only known handguns are single shots. Thus, the .30-06 M2AP 'black tip' is still exempt for sporting purposes, but still considered 'armor piercing' under the law. (source: https://www.atf.gov/resource-center/docs-0/download page 15)
     
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  15. rfscjeep

    rfscjeep Member

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    What happens when you insert the definition of "manufacture" from ATF 2014 Reference Guide?
    https://www.atf.gov/file/11241/download
    "(10) The term “manufacturer” means any person engaged in the business of manufacturing firearms or ammunition for purposes of sale or distribution; and the term “licensed manufacturer” means any such person licensed under the provisions of this chapter"
    Personal use isn't "sale or distribution"

    922(a) 7 & 8 were struck out and replaced in 2005. Does anyone what it was prior or did they just replace "Secretary" with "Attorney General"
    https://www.congress.gov/109/plaws/publ92/PLAW-109publ92.pdf
     
  16. rfscjeep

    rfscjeep Member

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    To clarify when I said "ATF will consider any round that you produce that is not fired by yourself to be manufacturing with out a license. (Father, son, friend, shooting partner, trap teammate)." I was referring to any round regardless of it being AP. As soon as it leaves your possession it falls under "distribution" of the manufacturing definition and is no longer "Personal use"
    https://www.atf.gov/file/11241/download
    "(10) The term “manufacturer” means any person engaged in the business of manufacturing firearms or ammunition for purposes of sale or distribution..."
     
  17. Frank Ettin

    Frank Ettin Moderator Staff Member

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    You need to actually read the words. The definition is not of the word "manufacture" it's of the word "manufacturer".

    The definition of "manufacturer", i. e., someone engaged in the business of manufacturing" is material for the purposes of 18 USC 923(a), emphasis added:

    But 18 USC 922(a)(7), emphasis added:

    So 18 USC 922(a)(7) would be violated when anyone, not just as a manufacturer, makes armor piercing ammunition.
     
  18. Frank Ettin

    Frank Ettin Moderator Staff Member

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    No, you are wrong about this. I explained your confusion in post 17.
     
  19. rfscjeep

    rfscjeep Member

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    Thanks Mr Ettin for catching the mis-read, and I agree with the premise that 922(a)(7) would be violated by anyone.
     
  20. JTHunter

    JTHunter Member

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    Frank Ettin said:
    (17)
    (A) The term “ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm.

    (B)The term “armor piercing ammunition” means—

    (i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or

    (ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.


    The highlighted part in (B)(i) has me wondering. Many years ago, I "modified" some .380 ammo I had by making the hollowpoint hole a bit larger and putting a .177 BB in the enlarged hole to see if the bullets expansion or penetration was affected one way or the other.
    My question is: this was store-bought ammo, i.e., already manufactured. I only altered it and the final weight (B)(ii) was not substantially changed as some lead was removed before the BB was added. The bullet was still mainly lead with the factory jacket.

    If that was "illegal", it would be hard to prove now as all the "evidence" was used up years ago in my experiments. But WAS it illegal? I modified, not manufactured the ammo.
     
  21. Frank Ettin

    Frank Ettin Moderator Staff Member

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    If anyone wants to try answering, please answer based on legal principles. Answers involving comments like "it seems to me" or "I would think" or "I guess" or anything else like that, aren't helpful and will be deleted.

    Remember that in the context of a legal discussion what you think is or should be doesn't matter. What matters is how and why a judge is likely to answer if the question comes up in court. And a judge will answer based on applicable, legal authority, i. e., statutes, regulations, case law, and similar sources.
     
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  22. rfscjeep

    rfscjeep Member

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    In regards to what you did at the time. Morissette v. United States, 342 U.S. 246 (1952) is a US Supreme Court case dealing with criminal intent, in summery Mr Morissette openly collected bomb cases from a firing range that he thought were abandoned & sold them for scrap. He was convicted of theft from the government. The Supreme court overturned his conviction on the basis that the person must intend to commit a crime. Knowing what you know now and questioning whether it's legal or not behooves you not to repeat the act until its clarified.

    In regards to whether a steel bb tipped round would be considered a "projectile core" the best resource is to ask the ATF themselves.
    This quoted from https://www.atf.gov/firearms/docs/guide/atf-national-firearms-act-handbook-atf-p-53208/download
    "7.2.4 Do you know how ATF would classify your product? There is no requirement in the law or regulations for a manufacturer to seek an ATF classification of its product prior to manufacture. Nevertheless, a firearms manufacturer is well advised to seek an ATF classification before going to the trouble and expense of producing it. Perhaps the manufacturer intends to produce a GCA firearm but not an NFA firearm. Submitting a prototype of the item to ATF’s Firearms Technology Branch (FTB) for classification in advance of manufacture is a good business practice to avoid an unintended classification and violations of the law."
    While you may not be classified as a "manufacturer", the process of classification should be the same for personal use...I would suggest sending a drawing...no sense in giving them the "evidence"
     
    Last edited: Feb 10, 2018
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  23. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Although it's really not that simple. The requisite intent is not necessarily "to commit a crime." If that were the case, ignorance that one's action constituted a crime would be a defense. In fact what sort of intent is necessary to support a conviction for a crime will depend on the particular crime. Here's a short, very basic article on the subject.

    But let's take a closer look at Morissette. Morissette was charged with and convicted of violation of 18 USC 641, a statute which basically makes it a crime to steal government property. The statute itself is very straightforward and doesn't on its face require that one have some sort of specific or evil intent in order to commit a violation of it.

    Morissette's defense to the charge was essentially that he reasonably thought that the bomb cases he took were abandoned. The trial court was unsympathetic noting that the statute involved didn't require an intent to steal -- merely that the act takes the property, (Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), at 247 to 250).

    The Court in reversing the conviction noted (Morissette, at 260 to 262, emphasis added, footnotes omitted):

    And in describing the necessary element of intent the trial court failed to acknowledge and instruct Morissette's jury on, the Court notes (Morissette, at 275 to 276):

    Basically what the Court did is read into a federal statute defining a larceny or theft type crime, which statute lacked any statement of the mental state needed for the acts to be a crime, the established Common Law requisite intent for the crime of larceny.
     
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  24. Neo-Luddite

    Neo-Luddite Member

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    And now those calibers are pistol calibers per ATF ruling...EXCEPT that ATF has let slide calibers in which the pistols now sold are exclusively single shot---so AFAIK .50 BMG is still off the pistol caliber list.
     
  25. JTHunter

    JTHunter Member

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    Rfscjeep and Frank - thanks loads for the info. That article on "mens rea" was interesting. :scrutiny:
    As these BBs had been put into hollowpoints in the desire to increase their expansion, even to the point of fragmentation, it is probably a good thing that they were used up years ago. Reading that "mens rea" makes me think that, in trying to enhance the functioning of the HP bullets, might tip the balance in an undesirable direction. :uhoh:
    Thanks again for the feedback. :thumbup:
     
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