On the Obama administration’s last full day in office, U.S. Fish and Wildlife Service Director Dan Ashe issued Director’s Order 219, banning the use of traditional lead ammunition on all federal lands including national parks, tribal lands, and national wildlife refuges.
While this represents an enormous amount of acreage — the U.S. government currently owns half the land in 11 Western states alone — Order 219 has provisions built in to extend the ban even to non-federal lands. This was President Obama’s parting shot against an industry that’s long been in his crosshairs.
It’s also a window into today’s convoluted workings of the administrative state, which whipsaws whole industries and their consumers with conflicting laws, regulations, and bureaucracies.
Perhaps the simplest way into this confusion is through a now forgotten incident from 2015 involving the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).
In early 2015, ATF announced a ban on 5.56 mm M855 “green tip” ammunition — a popular type of ammunition for one of the most popular firearms in America, the AR-15 rifle.
According to the agency, the M855 ammunition fell afoul of the Gun Control Act of 1968 (GCA) and its amendment, the 1986 Law Enforcement Officers Protection Act (LEOPA), which bans “armor piercing ammunition.”
LEOPA defines “armor piercing ammunition” two different ways. If something is “constructed entirely…from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium,” or if it is “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,” then it’s “armor piercing.”
Such a definition effectively bans a great deal of ordinary rifle ammunition. Recognizing this, the authors of LEOPA incorporated a legislative exception into the ban, enabling the Attorney General to designate whether a “projectile…is primarily intended to be used for sporting purposes,” (to include hunting and target shooting).
In effect, it’s the Attorney General’s determination of the intention behind the manufacturing of a particular projectile, and not the bullet’s performance per se, that does or does not make it “armor piercing ammunition” in the eyes of the law.
The system of allowing an AG exception had worked relatively well until Obama’s presidency, when the ATF moved to withdraw the exemption status of the M855 ammunition.
ATF justified its effort on the grounds that the bullet consisted of a “steel core” and therefore fell under the strictures of the 1986 law. Awkwardly for the federal government, the M855 projectile doesn’t have a steel core. To be precise, the M855 has an 80 percent lead core, covered in a thin steel sheath.
Moreover, and more germane to the underlying logic of the exemption provision in the law intended to protect law enforcement officers, there seems to be no evidence forwarded that police officers have been shot and killed, or seriously wounded by an M855 bullet shot from a handgun variant of the AR-15.
The ban — and backlash against it, which eventually caused it to be suspended — was immediately subsumed within the narrative of gun rights vs. gun control. But that polarizing framework obscured that the M855 ammunition ban was coinciding with the broader government’s “war on lead.”
Backed by environmental groups, in 2009 the National Park Service announced a “Get–the-Lead-Out!” initiative to outlaw the use of lead in firearms and fishing tackle “by December 31, 2010 or sooner.” Then, in 2010, the EPA asked for public comment on banning lead in ammunition, though it lacks jurisdiction over the matter due to specific ammunition provisions in the Toxic Substances Control Act.
In March of 2012, roughly 100 environmental groups formally asked EPA again to ban or limit the use of lead in the manufacturing of bullets and shotgun pellets. Then, in October 2013, California — which ranks 8th nationally in terms of total spending by hunters — became the first state to enact legislation banning lead ammunition for hunting altogether.
This war on lead was colliding directly with the fact that more than 90 percent of hunters and sport shooters use traditional lead ammunition, with roughly 90 percent of the 9 billion cartridges manufactured each year containing lead components. As an industry that operates on high volume and thin margins, it was fully aware that they were firmly in the Obama administration’s crosshairs.
But the difficulty the industry faced in moving away from lead was that obvious substitutes such as “Tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium,” are precisely the materials that run afoul of the federal definition of armor piercing ammunition.
To avoid doing so, ammunition manufacturers between 2011 and early 2015 sent some 30 requests to the Attorney General petitioning for their newly designed non-lead ammunition to be deemed “primarily intended for sporting purposes.”
Perhaps thinking it could now move against lead ammunition with the industry seeming to move in that direction, the Justice Department responded with its proposed M855 ban. But its published rationale rested on the newly formulated ATF “Framework” for determining the “sporting purposes” of ammunition.
That determination, according to ATF, rests not on the manufacturer’s intent (that “becomes irrelevant”), nor even on the law-abiding sporting consumer’s use, but “on the intent of one class of potential consumer group — those criminals” who might use the ammunition in a violent crime.
Never mind the lack of evidence that criminals had been forking over the $1,000 to buy 23-24-inch long “handgun” variants of the AR-15 to use M855 ammo in a crime, or had used one to shoot a police officer. That, too, was irrelevant.
To restate in simplest terms: ATF’s proposed 2015 Framework explicitly treated criminals as a legitimate consumer class whose potential relationship with a particular object outweighs the record for both what its manufactures produce and consumers actually buy it for.
Extend that line of argument outside of the firearms industry: Should you be prevented from making or selling rolling pins or golfing irons, because a potential criminal might use it to destroy property or harm another? There’s an alarming slippery slope-character to the government’s argument.
As worrisome as was the way in which the Obama administration used various tools of the administrative state “to get the lead out,” the push failed, in the face of overwhelming pushback from the firearms-owning public.
But true to form, just as when faced with other legislative impasses, the administration refused to go quietly into the night on this issue. Hence Director’s Order 219 banning the use of all traditional ammunition on federal lands.
If unreversed, it’s a devastating counterpunch to a significant consumer and manufacturing class, given with no thought to how government itself continually puts them in an untenable situation in which it neither approves new ammunition nor proves the harm traditional ammunition poses.
So goes the administrative state, using various bureaucracies and regulations to accomplish goals that neither the public or Congress have sanctioned.
Rebecca Burgess manages the Program on American Citizenship at the American Enterprise Institute.
The views of contributors are their own and not the views of The Hill.