The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The day before Thanksgiving, President Obama signed the National Defense Authorization Act (NDAA), S.1356. The primary purpose of the act was to provide funds for operation of the U.S. military. However, the act also includes several other provisions to protect Second Amendment rights, which the Constitution recognizes to be "necessary to the security of a free State."
These reforms demonstrate that, although Congress is not interested in banning guns, or in banning gun owners based on secret blacklists, Congress and the president can work together to enact common-sense reforms.
Prohibiting an administrative ban on lead ammunition
The first measure, in Section 315 of the NDAA, prohibits an administrative ban on lead ammunition. The Toxic Substances Control Act gives the Environmental Protection Agency administrator broad authority to outlaw almost any "chemical substance." The TSCA's definition of "chemical substance" contains several exclusions, including "any mixture," pesticides, tobacco, food and drugs. The exclusions are premised in part on the fact that there are other federal laws for specific regulation of these items. 26 U.S. Code sect. 2602(B).
Among the items that are excluded are firearms and ammunition. The exclusion in 2602(B)(v) is for "any article the sale of which is subject to the tax imposed by section 4181 of the Internal Revenue Code of 1986 [26 U.S.C. 4181] (determined without regard to any exemptions from such tax provided by section 4182 or 4221 or any other provision of such Code)." This cross-references the federal excise tax is 10 percent for "Pistols. Revolvers" and 11 percent for "Firearms (other than pistols and revolvers). Shells, and cartridges."
As a result, the EPA cannot use the TSCA to prohibit ammunition. However, some groups have petitioned the EPA to ban the lead "component" in all ammunition. After the Obama EPA declined to do so, the groups sued in federal court and lost. The NDAA amendment makes it clear that the TSCA exclusion of ammunition also applies to ammunition components. As amended, TSCA now reads: "(v) any article the sale of which is subject to the tax imposed by section 4181 of the Internal Revenue Code of 1986 [26 U.S.C. 4181] (determined without regard to any exemptions from such tax provided by section 4182 or 4221 or any other provision of such Code), and any component of such an article (limited to shot shells, cartridges, and components of shot shells and cartridges)". (New language in italics.)
The amendment does not in any way reduce the ability of state or federal wildlife agencies to restrict the use of lead ammunition in hunting, where necessary for environmental reasons. The amendment does prevent any future EPA administrator from banning lead ammunition entirely.
Allowing military personnel to protect themselves
This summer, a jihadist attacked military recruiting stations in Chattanooga, Tenn. In 2009, a jihadist attacked the Fort Hood military base in Texas. He murdered 13 unarmed victims and wounded 30. The military personnel there were defenseless, so the criminal was not stopped until military police arrived. Section 526 of the NDAA takes a first step toward remedying the dangerous disarmament of our armed forces:
SEC. 526. Establishment of process by which members of the Armed Forces may carry an appropriate firearm on a military installation.
Not later than December 31, 2015, the Secretary of Defense, taking into consideration the views of senior leadership of military installations in the United States, shall establish and implement a process by which the commanders of military installations in the United States, or other military commanders designated by the Secretary of Defense for military reserve centers, Armed Services recruiting centers, and such other defense facilities as the Secretary may prescribe, may authorize a member of the Armed Forces who is assigned to duty at the installation, center or facility to carry an appropriate firearm on the installation, center, or facility if the commander determines that carrying such a firearm is necessary as a personal- or force-protection measure.
This requires the creation of a system by which commanders "may" authorize personnel to carry firearms. Whether they would actually do so may depend on the views of the commander in chief. During the presidential election, voters should inform themselves about what potential presidents would do with Section 526. It should be recognized that the dysfunctional bureaucratic policy of mandating that the armed forces be unarmed long pre-dates the Obama administration and has existed under presidents of both parties.
Sale of surplus handguns to the public
Since 1905, the federal Civilian Marksmanship Program has provided for the sale of some (non-automatic) military surplus firearms to the public. In 1996, the program was mostly privatized, but the Defense Department was required to continue to provide certain surplus arms to the program. 36 U.S. Code sect. 40728. Citizens may receive the arms only after going through the same procedures as are required for any other retail firearms purchase, including extensive paperwork and background checks. NDAA Section 1087 sets up a procedure allowing the transfer of up to 10,000 surplus handguns to the CMP. These handguns are .45-caliber model "1911" pistols (named for their year of invention). For the military, these pistols have been replaced by the 9mm Beretta. The 1911 pistols are now collectors items, being warehoused at a cost of $200,000 per year. Selling them via the CMP will reduce this expense and raise revenue.
Although the gun control debate is often polarized, Congress and President Obama have demonstrated that common-sense reforms are still possible. Kudos to them.