Is a "sporting use" restriction compatible with Heller?

[zukiphile]

Apparently, a restriction on importation of some shotguns deemed not to have a "sporting purpose" will be announced.

http://blog.princelaw.com/2011/1/21/new-information-on-atf-s-ruling-that-will-be-issued-on-monday

Is such a restriction consistent with the recognition of the legitimacy of defensive uses in the Heller decision?

[Doyle]

I don't believe Heller has any bearing on this case. You are talking apples to oranges here. Heller deals with the right of an individual to arm himself. The Saiga case deals with importation. As gun owners, we tend to tie everything gun related together even if they belong to totally separate peices of legal spaghetti.

[dlb435]

Your looking at two different issues. Heller has to do with possesion. The govenrment has sole authority to restrict imports of anything, no matter what the use, if it so deems.
UZI's from IMI may not be imported at all. This is not because the UZI (semi-auto version) does not meet US standards, it's because IMI got caught up in some shady gun deals in South America. The first Bush administration locked IMI out of the US market for it's misdeeds. I'm not sure if the restrictions are still in place, but you see the point. Anything from Chinese drywall to semi-auto Bulgarian shotguns can be banned from import. No explaination need.
Have you tried to by a Cuban cigar lately?

[Tom Servo]

There doesn't seem to be mention of this on the ATF website, or anywhere besides the blog the OP linked. Is there any further confirmation on this?

It saddens me, but I'm thinking somebody at the Bureau finally realized that there's little difference between a Street Sweeper and a Saiga shotgun with one of those 20-round magazines.

The "sporting purpose" guideline has always been something of a blank check in terms of regulatory authority, and if this is true, I'm afraid we'll be stuck with it for now. An import regulation likely wouldn't violate Heller, and would have to be another court challenge.

[Technosavant]

It saddens me, but I'm thinking somebody at the Bureau finally realized that there's little difference between a Street Sweeper and a Saiga shotgun with one of those 20-round magazines.

I'd be lying if I said I hadn't thought this was coming down the pike the moment MD Arms started making that 20 round drum. Just no way the ATF was going to turn a blind eye to it forever.

There's no 922r for shotguns, so we can't readily just do a parts count and stay legal, but then, if it stays solely an import ban, it won't affect current owners (not that I support an import ban, mind you). If it gets classified as a DD, then me and many others will have to get to prepping the ATF paperwork for the thing; something I'm not thrilled at the thought of doing.

Until a ruling is issued, there's just no way to know. I'll stand on principles and say I hope nothing changes, even if my wallet is thinking the value of mine could go way up overnight. I'd sooner see things remain available.

I've seen no other confirmation of this, but like I said, I figured this was coming for a while.

[Al Norris]

People in the industry have been hinting that the Saiga 12 would be banned from importation for well over a year.

The ATF said this at a "Town Hall" meeting, over at the Shot Show. They also said that the official announcement would be on Monday, the 24th.

There is a lot of talk (on the interwebz) that the Saiga will be classified as a DD. We won't know anything until Monday.

As others have said, importing (foreign commerce) and possession for self-defense/sporting use are two completely separate things.

[maestro pistolero]

But does the ATF get to decide on it's own what is sporting use or not? They are an enforcement arm of the executive branch, not regulatory or legislative, correct? Do they get make the laws as well as enforce them? If so, what is to prevent them from deeming any import "not for sporting use"?

[Technosavant]

But does the ATF get to decide on it's own what is sporting use or not? They are an enforcement arm of the executive branch, not regulatory or legislative, correct? Do they get make the laws as well as enforce them? If so, what is to prevent them from deeming any import "not for sporting use"?

They get to call their own shots in this regard, but there is one potential brake on their power- overreach. If they push it too far, the people will throw an absolute fit, Congress will act, and the ATF will be left with less power than before. So long as they exercise such power with restraint, they can get away with it- you won't find most gun owners storming the halls of Congress on behalf of the USAS 12 or the Saiga 12. You don't see them doing it on behalf of the firearms that are kept out of our nation due to 922r and the point system for handguns (and generally, "sporting purposes" is more for long guns anyway, but bear with me).

If the ATF threw down a massive import ban, it would motivate far more people to action, and their ability to make such decisions by fiat would go away.

[44 AMP]

Due to the laws passed in the last 40 years, yes, the Director of the Treasury (head of the ATF) gets to determine what is sporting and what is not.

We objected then (and each time) but were out voted. Note the (in)famous Clinton AWB. It passed. We reacted, by voting as many of the supporters out of office at the next election as we could. And that did make an impression on the politicos, even though they were careful not to say so in public. In public, it was the Republican "contract with America" that caused the end of Democratic rule in Congress (for the first time in 40 years!), but in private, they admitted it was the AWB that cost them the seats.

We don't have much ground to stand on as a 2nd Amendment right when it comes to imports. They can, and do ban/tarrif/tax imports as they see fit. Legally that does not infringe our rights. If there were no guns made in the US at all, it would be a different matter, but its not.

We do not have a constitutional right to an imported weapon, be it a Saiga shotgun or an AK 47 (semi). Back in 68, the GCA banned the Walther PPK, because it was 1/8" too small in one dimension to meet the point system decreed as suitable for sporting purposes. Walther responded with the PPK/S, which was large enough to meet the arbitrary requirements.

Remember all those "assault weapons" with ugly thumbhole stocks? Again, done as a legal way around the Bush (the first) import ban. Anti's called it a loophole. The rest of us called it good legal business sense.

Heller basically says we have a right to our arms, in a personal sense, subject to "reasonable" restrictions. As long as you and I can obtain "suitable" arms from domestic makers, we cannot bring suit (or hope to win) against the govt for restricting imports. Sorry, but that's the way it is under current law.

[rjrivero]

I find it quite ironic that the Saiga which is gaining popularity in 3 gun events due to the box magazine design is not fit for "sporting" applications.

Is the ATF really saying that shooting sports aren't "sports?"

[Jim March]

There's a possible scandal brewing right now...claims are that BATFE took guns to Mexico themselves to amp up the hype over cross-border gun traffic - and one of the guns they themselves exported ended up being used on a US cop.

There's no proof yet. Some pretty credible people such as David Codrea are saying there are whistleblowers lined up. There's even talk about this being big enough to force reforms to or even obliterate the BATFE.

If so, it would make sense that they would do a bunch of new regulatory stuff ASAP as a "look, we're NEEDED!" kind of thing.

[rjrivero]

Jim,

Do you have a source for that story? I'd really be interested in reading more about it!

RJ

[44 AMP]

to force reforms to or even obliterate the BATFE.


One can only hope. There are numerous useful things the BATFE does that I cannot help but think would be better done under the offices of other govt agencies. With the possible exception of the IRS (another Treasury dept) the BATFE has become the most hated govt agency due to their behavior in recent decades. Certainly in the gun community. Inconsistency and abuse of power, virtually unchecked and unpunished has not done their reputation any good. I'm sure there are good, decent people who work for the ATF, there have to be. But the actions of others has tarred them all with the same brush. Some of those actions even left the FBI holding the bag for their screw ups, to the detriment of the FBI's public image as well.

Things haven't been so bad recently, but we still remember Waco, and Ruby Ridge, and numerous other lesser incidents. Its just my opinion, but the ATF is one agency I think we could do without. It would take a lot for the ATF to regain an image of being the good guys, and so far, they haven't shown much inclination to try. And if what is being said now turns out to be true, there really is a serious need for strong action. Maybe not abolishment of the Bureau, but something to cause a real attitude change.

Ok, sorry for the rant. One can only hope that if the allegations turn out to be true that those responsible get more punishment than some months of paid suspension followed by reassignment to a higher position.

[Tom Servo]

Do you have a source for that story?
I've been hearing about it at work all day, and as of tonight, I've found only two sources, both secondary. Neither give names of primary sources or exact details, nor do I consider either very credible.

[RPB]

Third Amendment:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Got that?

“without the consent of the Owner”

If an armed militia soldier holds a family member who went for a walk outside the house hostage, that’s duress, not consent.

SO

Second Amendment:
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

I’m not seeing sports here …


I do not hunt and kill animals for sport
I do not compete in shooting events competitions
I don't watch sports on TV, and have no interest in sports.
I have a gun to defend myself and my family
Who cares if a self-defense tool can also be used in a sport or not?
Second Amendment as it relates to third Amendment is about consent and being forced under duress to do something by a government's militia.
If a person's family member was held captive by the militia, your consent wouldn't be genuine.
So, it's about a person's right to protect themselves and family wherever they go, not just inside the home.

What the heck has that got to do with sports?
In other words, infringing upon "shall not be infringed" by bringing up what kind of ball they use in football versus tennis really is a joke.

[gc70]

What the heck has that got to do with sports?
In other words, infringing upon "shall not be infringed" by bringing up what kind of ball they use in football versus tennis really is a joke.

You will not find any limits about "sporting purposes" in the Second Amendment, but you will also not find any authority for 'importation' in the Second Amendment.

The Second Amendment protects the right to keep and bear arms that are already in the US, that are made in the US, or that are allowed to be imported into the US.

Article 1, Section 8, Clause 3 of the Constitution gives the government the authority to "To regulate Commerce with foreign Nations" -- and that authority is not in any way in conflict with the Second Amendment.

[thallub]

But does the ATF get to decide on it's own what is sporting use or not?


So long as their political bosses concur. The BATFE gets this authority from the "sporting purposes" clause of the GCA 1968. A very bad precedent was set in 1984.

The first guns to get banned from import under the "sporting purposes" clause were the so called "Saturday night specials". In 1984 the ATF banned the importation of a long gun for the first time. The gun was a South African made semi auto shotgun. In 1986 the ATF banned another semi auto shotgun.

In 1989 over forty semi auto rifles were banned from import. In about 1997 additional semi auto rifles were banned.

The 1968 Gun Control Act states specifically that the act had no intention of "plac[ing] any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity . . ." It was not until 1984 that this open-ended definition was more narrowly applied to only certain sporting activities, such as hunting and organized marksmanship.


http://rpc.senate.gov/releases/1998/importban-kf.htm

[Eghad]

The ATF can be as creative as they want to be...

We now have a company here in America that makes a legal California sporter version of the AK-47. What are the chances that the Saiga shotguns could be made here in America?

[thallub]

What are the chances that the Saiga shotguns could be made here in America?

If the BATFE follows the precedent set by their 1984 and 1986 decisions- zero chance. Both those guns were re-classified as destructive devices and they can't be made in the US either.

[44 AMP]

There are two separate issues here, one is the importation, and the other is the (potential, but probable) reclassification of the gun as a destructive device.

Importation, the Feds are entirely within their long established authority. Its even constitutional, what can be imported or exported from this country is within the lawful authority of the Federal Government.

Reclassification of the gun would affect its manufacture in the US. I don't believe that it would be technically banned from production (if/when reclassified), but the practical effect would be the same, as the legal market for it would not justify the expense of production. Nobody looking to make a profit would bother.

[Webleymkv]

The funny thing about all this is that, because of the route the ATF is taking, the Saiga 12 will probably still be importable even if they do implement a ban. As I understand it, the ATF is basically trying to apply 925(d)(3) to shotguns in the same way that they do to semi-automatic rifles. As imported, however, the Saiga 12 does not have any of the "evil" features made verboten by 925(d)(3), all of the pistol grips, bayonet lugs, flash hiders, and high-cap mags are aftermarket. So, even if the ATF implements their shotgun-import ban as proposed, one would still be able to build himself a tactical Saiga just as he always has so long as he complies with 922(r).

Of course, the destructive device thing is a different kettle of fish, but I have a harder time seeing the ATF classifying a gun as such based solely on the availability of aftermarket accessories. Remember, the Street-Sweeper and Striker-12 were never offered in a "sporting" configuration to begin with, but the Saiga, as imported, has never been offered in this country in anything other than a "sporting" configuration. I could more easily see the ATF ruling that a Saiga constitutes a destructive device if a certain accessory is installed rather than because a certain accessory could be installed.