Letter To The ATF From Orin Hatch, Howell
Heflin and Larry Craig
January 10, 1995
Mr. John W. Magaw, Director
Bureau of Alcohol, Tobacco and Firearms
Department of the Treasury
650 Massachusetts Ave., N.W.
Washington, D.C. 20226
Dear Mr. Magaw:
We have been informed that BATF is enforcing the provisions of the Violent Crime Control and Law Enforcement Act of 1994 ("the Act") concerning firearms magazines with an interpretation contrary to the language of the Act. We strongly object to the Bureau's apparent efforts to circumvent the will of Congress in this matter.
The Act amended 18 U.S.C. Sec. 922 by adding a new subsection (w) to prohibit the transfer or possession of certain firearms magazines categorized as "large capacity ammunition feeding devices" -- by definition, those manufactured after the date of enactment, September 13, 1994.
Since the date of enactment of the Act, BATF has refused to allow the importation of any magazines having a capacity of more than ten rounds, regardless of the date of manufacture. Unofficially BATF professes to be still "studying" this issue, and has made no formal announcement of its policy. However, recent shipments of such magazines manufactured before the date of enactment have been impounded by U.S.Customs, acting on instructions from BATF.
The term "large capacity ammunition feeding device" is a new term of art introduced by the Act. An addition to 18 U.S.C. Sec. 921(a) --the "Definitions" section of the Gun Control Act-- specified what this term of art means. Paragraph (31) now provides:
"The term large capacity feeding device'_
(A) means a magazine, belt, drum, feed strip or similar device manufactured after the date of enactment of the Violent Crime Control and Law Enforcement Act of 1994 that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition, but
(B) does not include an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition."
It is an elementary rule of statutory construction that
where a limitation is expressed in the definition of a term of art, such limitation
is implicit in every provision to which the term of art applies. In each instance
that the phrase "large capacity ammunition feeding device" appears
in the Act, it can refer only to a device manufactured after September, 13,
1994. Thus the prohibition on transfer or possession contained in sec, 922(w)(1)
does not encompass any magazines manufactured before that date, regardless of
where it was made or where it currently reposes. Therefore, BATF has no
authority to deny its importation.
It has been suggested that this interpretation might require the Act to be given extraterritorial effect. That is patently incorrect. Such a view erroneously focuses on sec. 922(w)(2), a "grandfather" clause which exempts from the prohibition any magazine "otherwise lawfully possessed" prior to the effective date of the Act.
However, it is the definition quoted above which controls the scope of the prohibition in the first place --not this exemption. Obviously Congress has no jurisdiction to prohibit (or exempt) the transfer or possession of any magazine by non-Americans outside the United States --but that does not prevent Congress from limiting the meaning of "large capacity ammunition feeding device" according to any criteria it chooses to use.
In specifically limiting the prohibited magazines to those
made after September 13,1994, Congress has followed much the same course as
with the firearms themselves. In 1968, Congress defined "firearm"
as a term of art to encompass only those manufactured after 1898. Those made
before simply are not covered by the Act. In 26 years no one has ever
suggested that this definition did not apply to any firearm in the world, or that BATF had any statutory authority to deny the importation of one manufactured before 1898.
We are aware that concerns have been expressed that, with respect to imported magazines, certain difficulties may arise in administering the law. However, that is much more the case with respect to domestically-made magazines. Before final passage the Act was deliberately amended to include unprecedented safeguards regarding the burden of proof (indeed, even a presumption of exclusion from the Act) and other provisions to protect the citizenry from overzealous BATF enforcement. Under these circumstances it would be very disturbing if BATF refused to accept the statute as written.
While BATF can ask Congress to change the law, it has no authority to unilaterally amend it with an interpretation inconsistent with its plain language. The Supreme Court, in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.837 (1984), set forth a two-step process for judicial review of an agency's interpretation of a statute:
First, "is the question of whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter."1 Second, where "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the stature."2
An application of the Chevron two-step analysis to the situation at hand, renders it unnecessary to reach the second step. Congress has spoken directly to the issue of exactly what criteria must be met to bring a magazine under the jurisdiction of the magazine provisions in the Act.
As stated above, the definition of a large capacity ammunition feeding device' requires that the magazine must have been "manufactured after the date of enactment" of the Act before it can be brought under the influence of the Act. Therefore magazines manufactured within, or outside of, the boundaries of the U.S. before September 13, 1994, do not meet the statutory definition of a 'large capacity ammunition feeding device'.
A review of the second step of the Chevron test only serves to further substantiate the result reached above in the first step. If the agency attempts to interpret the statute such that high-capacity magazines must not only have been manufactured, but also imported on or before the date of enactment of the Act, it is clear that such a result would not be "based on a permissible construction of the statute."
Although agencies have substantial discretion in their
executive role of implementators and interpreters of the law, they may not reinvent
that which Congress has already made clear in its
legislative role as architects of the law.
Accordingly, we would like to be informed immediately of BATF's official position on this issue. Furthermore, if your agency proposes to deny importation of pre-enactment magazines, I would like a detailed explanation regarding the precise legal grounds upon which such action is justified.
We would like your response within 10 days of receipt of this letter.
(Letter signed by Senators Orrin Hatch, Howell Heflin and Larry Craig)
1.Chevron, 467 U.S. U.S. At 842
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