SADJ 7#3

INTERNATIONAL LEGAL AFFAIRS
M855 – What’s the Big Deal?
VOL 7 NO 3 // by JASON M. WONG
Pay any attention to American politics,
and the reader will know that the ATF
recently attempted to reclassify and effectively
ban M855 5.56mm ammunition.
Thankfully, the effort was thwarted
for the moment, but what was the big
deal? How and why did ATF believe that they
had the power to ban a specific type of ammunition?
To answer that question, we need to
examine a bit of history.
THE LEGISLATIVE HISTORY OF ARMOR
PIERCING AMMUNITION
In the 1970s, law enforcement officers
became increasingly worried about the
availability of armor piercing (AP) ammunition
capable of being fired from a handgun.
Comfortable and effective body armor was
becoming available to more police officers at
a reasonable price. Rather than fight an escalating
war of increasing firepower, an attempt
was made to limit and restrict AP ammunition
capable of being fired from a handgun.
As many rifle shooters know, most body armor
cannot stop a common rifle projectile;
those that are able to stop a rifle projectile are
usually very heavy, cannot be concealed, and
are effective against only one or two impacts.
Restrictions against rifle ammunition capable
of penetrating a protective vest would
instantly classify most as AP. The restriction
against AP ammunition was thus limited to
handgun ammunition.
In response to law enforcement demands
for action, The Law Enforcement
Officers Protection Act of 1985 was debated
and became law. When applied in conjunction
with provisions of the Gun Control Act of
1968, these two pieces of legislation become
singularly important, as one cannot operate
without the other in defining and prohibiting
the possession of M855 ammunition.
THE GUN CONTROL ACT OF 1968
The early 1960s were a turbulent period
highlighted with the assassinations of John
F. Kennedy (1963), Malcom X (1965), Martin
Luther King (1968), and Robert Kennedy
(1968). Add the University of Texas shooting
in 1966 with a call to restrict the possession
of firearms, and one finds the Gun Control
Act (GCA) of 1968 – the first major piece of
U.S. anti-gun legislation since the National
Firearms Act of 1934. For the purpose of this
analysis, a singular piece of the GCA is relevant
– the Sporting Purposes Test.
The Sporting Purposes Test was passed
as part of the GCA, and grants the U.S. Attorney
General the ability to restrict the import
and manufacture of any firearm or ammunition
that is not “generally recognized as
particularly suitable for or readily adaptable
to sporting purposes.” The actual language
within the law is quite bare, with interpretation
of the clause left to the governing agency
– the ATF. As demonstrated in prior acts, the
sporting purpose test has been used for political
gain, namely in 1986, when “assault style”
rifles were banned from import into the U.S.
Other acts in the name of “sporting purpose”
include the determination that Striker-12 and
USAS-12 shotguns had no legitimate sporting
purpose as Title 1 firearms, and were re-classified
as destructive devices. The basis for the
attempt to ban M855 ammunition comes in
part from the sporting purposes test.
THE LAW ENFORCEMENT OFFICERS
PROTECTION ACT OF 1985
During debate of the Law Enforcement
Officers Protection Act of 1985, (LEOPA),
Congress sought a ban on ammunition that
was capable of penetrating body armor, and
that could be fired from a handgun. Senator
Moynihan (D-NY) testified that the intent
of the bill was to only ban ammunition that
both met a performance standard and was
designed to be used in a handgun.
“[L]et me make clear what this bill does
not do. Our legislation would not limit the
availability of standard rifle ammunition
with armor-piercing capability. We recognize
that soft body armor is not intended to stop
high powered rifle cartridges. Time and again
Congressman Biaggi and I have stressed that
only bullets capable of penetrating body armor
and designed to be fired from a handgun
would be banned; rifle ammunition would
not be covered.” (Hearings, Senate Committee
on the Judiciary, 98th Congress, 2d Session,
May 17, 1984. 30-31. (Senator Moynihan)
(emphasis added).
Sadly, this important point was not included
in the final bill. The final bill did not
include either a performance-based standard,
nor limit the definition of armor piercing ammunition
to ammunition “designed” for use
in a handgun. Instead, the bill used different
language based upon the composition of the
ammunition and whether the subject ammunition
may be used in a handgun. The legal
framework under which ammunition in the
United States is now defined is found in 18
U.S.C. 921 (A)(17)(B):
(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.
18 U.S.C. 921 (A)(17)
As a result, all ammunition that meets
the composition criteria of the law and may
be fired from a pistol is defined as AP ammunition.
Although the LEOPA ultimately did
not include a performance standard as contemplated
during debate, the law did give the
U.S. Attorney General the power to exempt
ammunition that otherwise falls within the
definition of AP ammunition, but is “primarily
intended to be used for sporting purposes.”
Exemptions have been issued in the
past. In 1986, ATF exempted M855/SS109
ammunition under the sporting purposes
test. Similarly, in 1992, ATF exempted the
.30-06 M2 AP cartridge from the regulation.
According to ATF, since 2011 there have been
approximately 30 exemption request for AP
ammunition.
THE PRESENT
Much has changed since 1985, and like
most regulatory frameworks, the law has
not kept up with industry. Demand for lead
free ammunition as a safer alternative to
traditional hunting ammunition has created
ammunition that was not commercially
available in 1986. New lead free ammunition
relies upon steel and tungsten in shot shells,
and copper-based projectiles for rifle ammunition.
Often, the copper-based projectiles
may be 95% – 100% copper based, with a
small percentage of zinc or other metal.
Similarly, increased awareness of NFA
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