From: [34 AEJ 7 D] at [CMUVM.CSV.CMICH.EDU] (W. K. (Bill) Gorman)
Newsgroups: talk.politics.guns
Subject: NRA: BATF MAGAZINE BAN (fwd) (fwd)
Date: 19 Jan 1995 22:48:25 -0600

----------------------------Original message----------------------------

Forwarded message:
> Date: Mon, 16 Jan 95 08:34:49 CST
> From: "Kevin Langston" <[Kevin Langston] at [ccmail.us.dell.com]>
> To: [l--gs--n] at [frontier.lonestar.org]
> Subject: NRA: BATF MAGAZINE BAN
>
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 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.

 						Sincerely,

 Letter signed by Senators Orrin Hatch, Howell Heflin and Larry Craig


 1.Chevron, 467 U.S.  U.S.  At 842

 2.  Id.
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