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View Full Version : How is 922(r) Legal?


MudCamper
04-11-2011, 2:50 PM
I've never much been into AKs or other foreign rifles, so I never paid much attention to 922(r), until now. Upon reading it I am a bit shocked.

How is this legal, particularly given Heller and McDonald? What the heck does "sporting" have to do with my SCOTUS affirmed constitutional right?

Are there or will there be challenges to this federal crap in the wake of Heller/McDonald?

Alaric
04-11-2011, 3:02 PM
I think 922r is ripe for challenge. Seems like one of those laws that's low-hanging fruit for Gura or someone to come along and pick.

The question, I assume, is one of priority. Since 922r affects a smaller subset of firearms enthusiasts and doesn't rival issues like what's currently and recently been litigated, it's time just hasn't come yet.

wash
04-11-2011, 3:16 PM
As far as I can tell, very few people are prosecuted for 922(r) violations. It may be hard to find a plaintiff.

The last time I read the law, I was left with the opinion that since the ban sunset, there is no more prohibited type of gun and thus 922(r) applies to nothing. I'm sure ATF disagrees but I do think that eventually the right people will get around to fixing this (probably around the time they start fixing the import bans).

For now 922(r) is an inconvenience that has created a thriving cottage industry for made in USA parts and as unintended consequences go, that's a good one. There are far more important legal issues effecting our gun rights, be patient as they are handled first.

M1A Rifleman
04-11-2011, 3:40 PM
Wasn't this the Bush #1 exec order that stopped the import of Chinese and Russian made firearms and ammo? Not sure if this was 922, but I recall he stopped the import of the inexpensive Chinese and Russian SKS's.......... and I didn't get one :mad:

69Mach1
04-11-2011, 3:41 PM
Might I point out that in reality 922r is a good thing. It's 925D that prohibits the importation and therefore the ownership of these rifles, but without 922r we could not have these rifles in our country. Yes, you have to comply with the law, but without it there would be NO importation.

bwiese
04-11-2011, 4:01 PM
Might I point out that in reality 922r is a good thing. It's 925D that prohibits the importation and therefore the ownership of these rifles, but without 922r we could not have these rifles in our country. Yes, you have to comply with the law, but without it there would be NO importation.

Very good point.

I think what OP & others are really addressing is not the raw Fed USC code number but the 'sporting purposes' concept.

However, this in the courts will take on the effective nature of an assault weapons case ("nonsporting military rifles") mixed in with ability to regulate imports. It's not a slam dunk until the right time.

69Mach1
04-11-2011, 4:10 PM
Very good point.

I think what OP & others are really addressing is not the raw Fed USC code number but the 'sporting purposes' concept.

However, this in the courts will take on the effective nature of an assault weapons case ("nonsporting military rifles") mixed in with ability to regulate imports. It's not a slam dunk until the right time.

Words of wisdom. Thanks.

What I don't really get is why I have to comply with 922r if I'm building a rifle from some imported parts, here in the US of A, and what that has to do with imporation.

rromeo
04-11-2011, 4:15 PM
^^^^ this.
Does 922(r) actually apply if you build your own AK variant with a US made receiver?

bwiese
04-11-2011, 4:22 PM
What I don't really get is why I have to comply with 922r if I'm building a rifle from some imported parts, here in the US of A, and what that has to do with imporation.

See below.

^^^^ this.
Does 922(r) actually apply if you build your own AK variant with a US made receiver?

Yep.

The law banned not only importation of such 'nonsporting' guns but also codified that you can't just build a gun that is not importable (i.e, a gun with all foreign parts.) Then the definition of what is domestic vs foreign comes into play with the "10 or less key foreign parts" list coming into play.

The actual receiver origin is relatively irrelevant for this: the receiver is just one of the "10 key parts" on the BATF list (27 CFR 478.39.)

Relevant guns can have a foreign receiver and enough US compliance parts to be 922(r) compliant.

Conversely, a US-mfgd AR15 receiver could be fitted with enough key foreign AR parts (that somehow made it into US in the past) such that it would be considered the equivalent of a nonimportable 'foreign' gun. We just don't worry about that with ARs since we have a plentiful supply of the best quality parts here anyway, and Leapers crap is junque ;)

rromeo
04-11-2011, 4:38 PM
Gotcha, thank you for the clarification.

Mesa Tactical
04-11-2011, 4:49 PM
I think 922r is ripe for challenge. Seems like one of those laws that's low-hanging fruit for Gura or someone to come along and pick.

I can't see how it can be challenged. It basically covers importation. There's no Constitutionally-guaranteed right to imported firearms. And 922(r) simply says you can't import an otherwise prohibited firearm in pieces and then build it in the US.

It's not really a civil rights issue.

Now there might be an opportunity to challenge the traditional definition of "sporting purposes" (ie, an animal has to die).

bwiese
04-11-2011, 4:58 PM
I can't see how it can be challenged. It basically covers importation. There's no Constitutionally-guaranteed right to imported firearms. And 922(r) simply says you can't import an otherwise prohibited firearm in pieces and then build it in the US.

It's not really a civil rights issue.

It's a 2nd tier civil rights issue - i.e., on the immediate periphery.

Imagine banning imports of newsprint and ink [unless there were gross health/safety toxics issues] - especially inks used by major newspaper chains.

Mesa Tactical
04-11-2011, 5:12 PM
Imagine banning imports of newsprint and ink [unless there were gross health/safety toxics issues] - especially inks used by major newspaper chains.

There is a great deal of precedent for various import bans of this or that item, generally to protect domestic producers or as a function of foreign policy. As long as newsprint and ink continued to be available domestically at reasonable prices, it seems unlikely you would be able to challenge import bans on First Amendment grounds.

In fact, I believe newsprint imports from Canada were heavily regulated prior to NAFTA.

CHS
04-11-2011, 5:12 PM
I would say that in reality 922(r) just isn't worth going after right now.

1.) Many people interpret it to apply ONLY to actual manufacturers.
2.) Almost no one has been prosecuted for it. And I believe out of the people that have, they were licensed manufacturers.
3.) You can't be prosecuted for mere possession or sale/transfer of a non-922(r) gun. (There is an ATF letter floating around out there regarding possession and sale)

The law is nearly unenforceable so not really worth it.

Yet.

nick
04-11-2011, 5:14 PM
At stake here is one of the major powers given to the ATF - the "sporting purposes" crap, which goes beyond 922(r). "Sporting purposes" is also one of the major arguments the antis use in their assault on 2nd Amendment rights. As such, I honestly doubt the federal government will let this one go without putting up a major fight. 922(r) might be a less significant infringement on our civil rights than many other laws on the books, but it deals with the "sporting purposes" mantra, and as such overturning it may present a major threat to the antis.

Scott Connors
04-11-2011, 5:32 PM
Might I point out that in reality 922r is a good thing. It's 925D that prohibits the importation and therefore the ownership of these rifles, but without 922r we could not have these rifles in our country. Yes, you have to comply with the law, but without it there would be NO importation.

922r is like the 10-round mini-Glocks and the .416 Barrett: a testimonial to the Law of Unintended Consequences for the Brady Bunch. Thanks to 922r, an entire cottage industry has grown up in manufacturing compliant rifles and shotguns to bypass its provisions. Even the ban on importing barrels is working out insofar as this has lead to increased U. S. barrel productions.

I personally consider the increased frustration of mental midgets like LCAV or Ceasefire, not to mention Sugarman and Helmke, as we render their schemes meaningless to be important psychological blows, showing them just how meaningless and ineffectual their efforts are.

Mesa Tactical
04-11-2011, 5:33 PM
At stake here is one of the major powers given to the ATF - the "sporting purposes" crap, which goes beyond 922(r). "Sporting purposes" is also one of the major arguments the antis use in their assault on 2nd Amendment rights.

"Sporting purposes" is language from the 1968 GCA. Good luck finding more than half a dozen Congressmen interested in repealing that.

However, "sporting purposes" was never defined by Congress. The ATF has made several attempts over the years in nailing this bit of jello to the wall. So far, and without any explanation, they have insisted "sporting purposes" are limited primarily to hunting. Their memos acknowledge plinking (no doubt the most common use of firearms in America), but mysteriously discount plinking as a "sporting purpose."

"Sporting purposes" is not going away, but the definition could possibly be expanded if gun rights groups were interested in working with the ATF.

Alaric
04-11-2011, 7:42 PM
There is a great deal of precedent for various import bans of this or that item, generally to protect domestic producers or as a function of foreign policy. As long as newsprint and ink continued to be available domestically at reasonable prices, it seems unlikely you would be able to challenge import bans on First Amendment grounds.

In fact, I believe newsprint imports from Canada were heavily regulated prior to NAFTA.

That may well be an avenue to challenge the law then, as NAFTA and the WTO could take an interest in protectionist schemes that unfairly inhibit foreign manufacturers from access to American markets.

Not only would it be a novel approach, it would open up a new battle ground internationally for the RTKB.

I would say that in reality 922(r) just isn't worth going after right now.

1.) Many people interpret it to apply ONLY to actual manufacturers.
2.) Almost no one has been prosecuted for it. And I believe out of the people that have, they were licensed manufacturers.
3.) You can't be prosecuted for mere possession or sale/transfer of a non-922(r) gun. (There is an ATF letter floating around out there regarding possession and sale)

The law is nearly unenforceable so not really worth it.

Yet.

How many people have lost guns or business opportunities due to BATF scrutiny and harassment under the guise of 922r? I think it would be safe to hypothesize that the number of actual 922r prosecutions pales in comparison with the damage wrought by BATF Agents intimidating law-abiding citizens with it's mere existence on the books.

bwiese
04-11-2011, 7:47 PM
"Sporting purposes" is language from the 1968 GCA. Good luck finding more than half a dozen Congressmen interested in repealing that.

I think there's a lotta Dems shaky seats right now who might like to get a bit of security :)


"Sporting purposes" is not going away, but the definition could possibly be expanded if gun rights groups were interested in working with the ATF.

Sporting purposes will have to go away as it has nothing to do with 'security of a free state' post-Heller/post-McDonald, and is arbitrary and capricious as to what someone's sport is.

wash
04-11-2011, 8:59 PM
Hey Bill, ask CGF if they can get sporting purposes to cover hand grenades because that's the only way I can catch a fish.

MudCamper
04-11-2011, 9:22 PM
Might I point out that in reality 922r is a good thing. It's 925D that prohibits the importation and therefore the ownership of these rifles, but without 922r we could not have these rifles in our country. Yes, you have to comply with the law, but without it there would be NO importation.

Very good point.

I think what OP & others are really addressing is not the raw Fed USC code number but the 'sporting purposes' concept.

However, this in the courts will take on the effective nature of an assault weapons case ("nonsporting military rifles") mixed in with ability to regulate imports. It's not a slam dunk until the right time.

Yes. I guess I was a bit confused. Yes, it is the of banning weapons based on them not having sporting use I was wondering about. Didn't Saiga's new guns just get banned based on this? And there was the recent discussion on the UZI name change that got me wondering about it as well.

IrishPirate
04-11-2011, 9:32 PM
OOOOO.....OOOOO!!!!.....do i get to be the first one to say "chess, not checkers"?...YESSSSS!!!!!!

nobody_special
04-11-2011, 11:02 PM
I can't see how it can be challenged. It basically covers importation. There's no Constitutionally-guaranteed right to imported firearms. And 922(r) simply says you can't import an otherwise prohibited firearm in pieces and then build it in the US.

It's not really a civil rights issue.

Now there might be an opportunity to challenge the traditional definition of "sporting purposes" (ie, an animal has to die).

I disagree.

18 USC 922(r) does not criminalize the importation of anything. It criminalizes assembly, and assembled firearms are protected. There is no reason to believe that the 2nd amendment is limited in scope to protect only domestically manufactured arms.

The purpose of this regulation appears to be the suppression of certain weapons. I believe Alan Gura recently tore apart an argument where Chicago's lawyers claimed to have an interest in suppressing the exercise of a fundamental right. He might have to repeat himself.

This appears to be yet another egregious abuse of the interstate commerce clause. I'm having difficulty finding any provision in the constitution that would reasonably allow federal regulation of the assembly of a firearm from parts that were imported at some point in the past.

Mesa Tactical
04-12-2011, 7:47 AM
Sporting purposes will have to go away as it has nothing to do with 'security of a free state' post-Heller/post-McDonald, and is arbitrary and capricious as to what someone's sport is.

Again, "sporting purposes" is not in any way used to infringe the gun rights strengthened by Heller and McDonald. It is used to restrict imports of firearms. It is hard to argue Americans enjoy a Constitutionally protected right to imported firearms, when the domestic supply is beyond sufficient. Gura or someone else would have to first get the SCOTUS to recognize a civil right to keep and bear imported firearms. Given the tenuous 5:4 majorities in the last two cases, this seems pretty unlikely, even if you could find a case with the necessary standing.

As for the WTO angle, few imported firearms are outright banned, they are simply required to meet certain regulatory restrictions. Benelli is free to sell thousands of shotguns in the US, so long as they are configured in a manner consistent with US regulatory law. Man, many thousands of imported products are subject to similar regulatory requirements, and all countries have them. They are widely considered to be entirely legitimate unless they can be seen to be deliberately limiting imports to protect a domestic supplier. Given the number of shotguns Benelli sells in the US, it would be hard for them to argue their imports are unfairly restricted because their magazine capacities are limited to five rounds.

Now, can a WTO case be made that imported products are unfairly held to a different standard than domestically produced? Maybe, I have no idea. But the only way such a case would be made would be if Beretta and FNH (for example) got together and tried to make a stink of it. But given the business they already do in the US, and how their business is minimally affected - if it's affected at all - by the 1968 GCA, and a justifiable reluctance to stir up trouble with the US Government (a large customer of theirs, among other things), and the cost of the effort compared to any likely benefit, it's hard to see that happening either.

Maybe Norinco might want to take up the banner.

The ATF has attempted on several occasions over the years to more narrowly define "sporting purposes." In each case they have solicited public and industry comments (in the current case the comment period will expire in two weeks). If the NSSF and the NRA had made more efforts in the past and at the present time to inject themselves into the ATF's deliberations, I bet we wouldn't be having this discussion now at all. But the NSSF, at least, have been perfectly happy with the ATF's definition of "sporting purposes" (it broadly matches their own). And you can imagine there is little enthusiasm among domestic firearms producers to allow more imported firearms into the country.

18 USC 922(r) does not criminalize the importation of anything. It criminalizes assembly, and assembled firearms are protected. There is no reason to believe that the 2nd amendment is limited in scope to protect only domestically manufactured arms.

922(r) is simply one part of a law enforcing the intent of the 1968 GCA. It basically says that you can't get around the law by importing a prohibited configuration in pieces, then assembling it on US soil.

The Second Amendment does not protect domestic or any other manufacturers of firearms, it protects the right of the people to keep and bear arms. And since everyone including the SCOTUS (and except for me) seems to believe it is acceptable for the Federal government and the states to outright ban certain kinds of firearms, such as machine guns, without infringing on the rights protected by the Second Amendment, it would be hard to make a case that regulating the importation of certain firearms is an infringement.

I'm having difficulty finding any provision in the constitution that would reasonably allow federal regulation of the assembly of a firearm from parts that were imported at some point in the past.

If you can find any part of the US Constitution that allows a Federal agency or even the Congress to ban the possession and use of cocaine, I'd love to see it.

paul0660
04-12-2011, 8:06 AM
922(r) is simply one part of a law enforcing the intent of the 1968 GCA. It basically says that you can't get around the law by importing a prohibited configuration in pieces, then assembling it on US soil.

Yes. It keeps big importers from doing an end around the GCA. It wasn't written with the little people in mind. If our friends in Florida are building otherwise illegal to import rifles from imported receivers and scary stocks, the BATF could and would want proof of the origin of US parts, ie invoices. That every US made part is NOT required to be marked or otherwise vetted shows that the government's concern is not with Bubba throwing a Tapco stock on a SKS. (Though of course the small compartment in the pistol grip of my folder is just right to keep a list of the parts I have replaced with Gen U Wine US made parts, in case anyone asks).

nick
04-12-2011, 8:57 AM
"Sporting purposes" is language from the 1968 GCA. Good luck finding more than half a dozen Congressmen interested in repealing that.

That was my point, and I don't expect that to be repealed. At best, it can be removed by courts (although I have my doubts about the intellectual honesty of the bulk of our judges).

As for "sporting purposes" not going away, it would have to, if RKBA is to be anything even resembling a right. While other rights have restrictions, no purpose is expected to be produced and proven when exercising a right.

nick
04-12-2011, 9:02 AM
Hey Bill, ask CGF if they can get sporting purposes to cover hand grenades because that's the only way I can catch a fish.

DFCPA - Disabled Fishermen and Children Protection Act, putting food on our children since 2012 :p

SamsDX
04-12-2011, 9:20 AM
Again, "sporting purposes" is not in any way used to infringe the gun rights strengthened by Heller and McDonald. It is used to restrict imports of firearms. It is hard to argue Americans enjoy a Constitutionally protected right to imported firearms, when the domestic supply is beyond sufficient.

^^^
This is an excellent read of where these "import" prohibitions currently stand, even in light of Heller and McDonald. Back when the USAS-12 shotgun was getting attention and banned, the importer filed suit against the ATF. The District Court in Gilbert Equip. Co., Inc. v. Higgins pretty much agreed with this, finding that "the right to keep and bear arms does not extend to and include the right to import arms and further find[ing] that 18 US.C. Section 925(d)(3) does not unconstitutionally impinge on the right to keep and bear arms." I find no language in recent Supreme Court precedent that questions this holding. Even though these provisions of the GCA are frequently used to set domestic gun control policy, fundamentally they concern international/importation issues, and so I think the Executive is given wide latitude in its enforcement, by virtue of the broad wording of the statute.

With the recent ATF activity relating to the interpretation of the "sporting purposes" language, this issue has been gaining some attention. Our esteemed Senator Feinstein has sent the President this letter (http://feinstein.senate.gov/public/index.cfm?FuseAction=NewsRoom.PressReleases&ContentRecord_id=e1da8200-5056-8059-766c-e323f139589b). The following paragraph is telling of where the antis want to take 922(r):

Since the Clinton Administration’s efforts, the GCA’s prohibition against non-sporting firearms has not been aggressively enforced, and many military-style, non-sporting rifles have flowed into the United States civilian market. Some of the rifles are cheap AK-type variants from former Eastern bloc countries, while others are more expensive, high-tech weapons. All of them, however, share military-style characteristics that should make them ineligible for import. Furthermore, it appears that some importers are bringing in rifle parts and reassembling them with a small number of domestically manufactured components. This practice has gone unchecked, despite Section 922 (r) of the GCA, which prohibits using imported parts to assemble any semiautomatic rifle or any shotgun which is identical to any rifle or shotgun prohibited from importation under 18 U.S. Code Section 925(d)(3).


Those sound like fighting words to me, especially considering the following paragraph in that letter attempts to disingenuously draw a connection between inadvertent 922(r) violations and the cartel violence in Mexico.

CHS
04-12-2011, 10:08 AM
Again, "sporting purposes" is not in any way used to infringe the gun rights strengthened by Heller and McDonald. It is used to restrict imports of firearms. It is hard to argue Americans enjoy a Constitutionally protected right to imported firearms, when the domestic supply is beyond sufficient. Gura or someone else would have to first get the SCOTUS to recognize a civil right to keep and bear imported firearms. Given the tenuous 5:4 majorities in the last two cases, this seems pretty unlikely, even if you could find a case with the necessary standing.

As for the WTO angle, few imported firearms are outright banned, they are simply required to meet certain regulatory restrictions. Benelli is free to sell thousands of shotguns in the US, so long as they are configured in a manner consistent with US regulatory law. Man, many thousands of imported products are subject to similar regulatory requirements, and all countries have them. They are widely considered to be entirely legitimate unless they can be seen to be deliberately limiting imports to protect a domestic supplier. Given the number of shotguns Benelli sells in the US, it would be hard for them to argue their imports are unfairly restricted because their magazine capacities are limited to five rounds.


Correct, but I could easily argue that MY rights are restricted simply because I chose a Benelli shotgun over a domestically-produced Remington.

The Remington can come from the factory with an 8-shot magazine, but I violate federal law if I buy a benelli and add a 3-shot extension to it, without significant modification of other parts of the gun.

In other words, as a consumer, it violates federal law for me to modify a foreign gun in such a way to make it identically match the configuration of a domestic gun.

And the reason that the BATFE gives for the violation, is that it's "not sporting".

That's a violation of Heller/McDonald due to being arbitrary and capricious.

"Sporting purposes" is absolutely used to infringe upon the rights of you and me. It's also one of the constant arguments we hear from the anti side as a reason to ban things like "assault weapons". We hear anti's say all the time "I totally support the 2nd amendment right for hunters and sportsmen"