Analysis of ATF Study on the Importability of Certain Shotguns

BY Herschel Smith
12 years, 12 months ago

In January of 2011 the Bureau of Alcohol, Tobacco, Firearms and Explosives authored what they call the Study on the Importability of Certain Shotguns.  The comment period ends on May 1, 2011, and my comments have been submitted to the pertinent e-mail address with name, address and other contact information.  My comments are herewith submitted to my readers.

It really is a sad state of affairs at the ATF.  With salient and pressing scandals that deserve attention (along with a need for a thorough house-cleaning and full disclosure by the ATF), lawyers and analysts have been focusing exquisite detail on the features that should be [dis]allowed on importable shotguns.

The ATF is working within the context of the decisions on the ban on assault rifles, a ban that had sunset provisions which are no longer applicable.  Features such as a pistol grip, a forend grip, a rail system for things such as tactical lights (light enhancing devices), high capacity detachable magazines, etc., are deemed to be associated with military style weapons and as such (in the determination of the ATF study team) are not “readily adaptable for sporting purposes.”

But this judgment is arbitrary, and I charge the ATF with circular reasoning.  Rather than appeal to facts which demonstrate whether a specific feature is adaptable for sporting purposes, the ATF study team apparently without reservation gives us the purpose around which their judgments are made, i.e., ensuring that the statutes codified in the Gun Control Act of 1968 remain useful.  As I observe in one comment:

On page 4 the following statements are made: “The 1989 study then examined the scope of “sporting purposes” as used in the statute. The study noted that “[t]he broadest possible interpretation could take in virtually any lawful activity or competition which any person or groups of persons might undertake. Under this interpretation, any rifle could meet the “sporting purposes” test. The 1989 study concluded that a broad interpretation would render the statute useless.”

Wrapped up in this paragraph we have not only an amusing logical blunder but also the real crux of the problem. Authors have presupposed the answer (so-called circular reasoning) at which they must arrive, i.e., the statute must remain useful. Thus, all interpretations by ATF are biased to yield that result. It is not the responsibility of the ATF nor is it within the purview of their authority to ensure the continued usefulness of a statute, if in fact it is rendered useless by advances, common practices, evolution in sporting, or lack of wise crafting of the statute (such as the fact that nowhere in this discussion of “sporting purposes” is there any latitude given for personal protection and home defense under the second amendment to the constitution of the United States). This single paragraph renders the study itself as useless as the statute has become.

As to the issue of the usefulness of military style features on weapons, I remark:

Ask any skeet shooter if s/he enjoys stopping every five shells and the answer makes for easy dismissal of authors’ objections to these features on firearms. Another example might be feral hog hunting, which usually occurs at night since these are nocturnal creatures. Feral hogs are destroying the American landscape, causing many farmers in the American South to go out of business, attacking household pets and even humans.  According to NFS and game control experts, they are multiplying more quickly than can be accommodated by lethal removal. Not only is feral hog hunting a sport involving guides and businesses specifically for that purpose, it may be necessary for lethal removal to be increased by an order of magnitude to save the American farmer.  Nocturnal hunting requires enhanced or tactical lights on Picatinny or Weaver rail systems, and hunting feral hogs might require high capacity magazines. Finally, note that some shooters have medical problems such as arthritis. Pistol and forend grips used for any sport and with any weapon can not only make the weapon less painful to use, it can make the difference between whether the shooter can engage in the sport at all. So with three examples (skeet shooting, feral hog hunting and medical problems) it has been demonstrated that the list of firearms features supplied by authors as not adaptable for sporting make the firearms more adaptable for sporting, and it is the proposed ATF regulations that are directly contrary to the practice of sporting. Many more such examples could be supplied.

I conclude the comments with this summary:

In general I find that the study [a] appeals to authority without citation of those authorities, [b] engages in circular reasoning in that conclusions are fixed at the outcome of the discussion (i.e., ensuring the continued usefulness of a particular statute), [c] is dated and out of touch with current practice, [d] ignores legitimate uses of certain weapon features for various sporting functions and activities, [e] fabricates arbitrary categories, [f] makes what can be demonstrated to be material false assertions. As such, this study cannot be used for promulgating regulation without damage being done to the constitutional rights of citizens of the United States.

Regardless of the disposition of this particular set of proposed regulations, this action by the ATF is yet another warning shot.  The ATF is working very hard to ensure that purchasing and using weapons – legally – is as hard as possible.  And yet the bureau might just take an even harder turn to the left.  If we learn nothing else through this study and related efforts, we learn that the Obama administration is no friend to second amendment rights.

Herschel Smith Comments on_ATF_Study on the Importability of Certain Shotguns

UPDATE: Thanks to Glenn Reynolds for the link.

Trackbacks & Pingbacks


  1. On May 2, 2011 at 12:01 am, Kevin said:

    Nice, but you missed the NFA implications.

  2. On May 2, 2011 at 12:07 am, Herschel Smith said:

    Just too much to cover in one post. I lose my readers after about 2.5 minutes according to Sitemeter data. Now for the comments, that’s a different story. Yes, it would have been nice to have wrapped NFA implications into this, but I’m not paid to do this. Not enough time. Wish it were so.

  3. On May 2, 2011 at 12:36 am, Lou Gots said:

    Skeet shooters loading more than five? WTF ! (Not “Winning the Future, the OTHER WTF.) Skeet shooters never load more than two, and then while standing of the pad, just before calling for the birds. It is just barely possible to take five shots at one of the doubles ststions, (1,2, 6 and 7) if a bird has been lost and the option fired, but no properly conducted range would approve the practice of loading five in advance.

  4. On May 2, 2011 at 1:41 am, davew said:

    Thanks Lou, for telling all of us how to enjoy our firearms.

  5. On May 2, 2011 at 2:46 am, nolanimrod said:

    we learn that the Obama administration is no friend to second amendment rights

    In other news we learned that gravity makes stuff fall down and the world is a sphere.

    Name one thing the Obama administration IS a friend to that is not inimical to individual liberty, human dignity, or – not entirely incidentally – the Constitution.

  6. On May 2, 2011 at 6:50 am, M. Report said:

    ‘The one who defines the terms wins the argument.’ – Old Chinese proverb.

    One cannot argue with the ATF; What one can do is elect a conservative administration, fire the Politically Correct actors in the bureau, reduce the scope of the mission, and defund to match.

    The ATF is one of several pieces of low hanging fruit ripe for plucking
    by political reformers.

  7. On May 2, 2011 at 6:53 am, SFC_Swede said:

    I also wrote these folks at the ATF an email. I tried using my experience with firearms of all types, to break down the lack of understanding on the purposes and features the study looks to ban. Magazine capacity…you refer to skeet shooting, but from simply a home defense perspective, I would rather have my 9 round shotgun in lieu of a 5 round one in the case of multiple invaders. On the collapsible butt stock, that feature allows for the shotty to be used safely and accurately by multiple persons. I am 6′ 2″, 210 lbs and have a long reach. My wife: 4′ 11″, 115 lbs with a short reach. The light attachment allows for PID of targets to eliminate the risk of accidents, and possibly eliminate the need to pull the trigger because said bad guy is caught with a huge spot light on him. I could go on and on…but great article.

  8. On May 2, 2011 at 6:55 am, Brian Macker said:

    Who cares if a feature is “readily adaptable for sporting purposes.” Our right to self defense is not contingent on having fun. If fun is the criteria I find machine guns to be entertaining as a sport. Same with fireworks.

  9. On May 2, 2011 at 7:00 am, Lou Gots said:

    You’re welcome. The “Skeet shooting” fail had been so egregious that I signed off before commenting of the most important criticism of the “sporting purpose” doctrine. Target shooting is a sport. Sanctioned Hi-power rifle competition uses military-pattern rifles. It always has, going back to the tradition of holding contests on “Militia Day.”

    Rules for competition handed down from the NRA and the CMP defining equipment deal with this. M16 and M14 “clones”–civilian, semi-automatic versions of military service rifles–are what most competitors are using. When the gun-grabbers say our rifles have no “sporting purpose” that is one more bald-faced lie.

  10. On May 2, 2011 at 9:59 am, Brock Manson said:

    Lou, if you’re basing what the Second Amendment means on what the NRA “rule” are, you are lost.

    Your two comments are rambling and somewhat ambiguous.

  11. On May 2, 2011 at 10:32 am, looking closely said:

    HPS Edit: “looking closely” has had his comments removed because he provided a fake e-mail address. If he wishes to repost his comments with a valid e-mail address I might allow it.

  12. On May 2, 2011 at 2:33 pm, styrgwillidar said:

    Sporting purposes?

    Completely ignores the reasoning in Heller by
    United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT whose decision was upheld BY SCOTUS which indicates sporting purposes isn’t any kind of valid criteria for assessing whether weapons should be banned.

    To summarize, we conclude that the Second Amendment
    protects an individual right to keep and bear arms. That right
    existed prior to the formation of the new government under the
    Constitution and was premised on the private use of arms for
    activities such as hunting and self-defense, the latter being
    understood as resistance to either private lawlessness or the
    depredations of a tyrannical government (or a threat from
    abroad). In addition, the right to keep and bear arms had the
    important and salutary civic purpose of helping to preserve the
    citizen militia. The civic purpose was also a political expedient
    for the Federalists in the First Congress as it served, in part, to
    placate their Antifederalist opponents. The individual right
    facilitated militia service by ensuring that citizens would not be
    barred from keeping the arms they would need when called forth
    for militia duty. Despite the importance of the Second
    Amendment’s civic purpose, however, the activities it protects
    are not limited to militia service, nor is an individual’s
    enjoyment of the right contingent upon his or her continued or
    intermittent enrollment in the militia.

    I also like page 53:
    The modern handgun—and for that matter the rifle and
    long-barreled shotgun—is undoubtedly quite improved over its
    colonial-era predecessor, but it is, after all, a lineal descendant
    of that founding-era weapon, and it passes Miller’s standards.
    Pistols certainly bear “some reasonable relationship to the
    preservation or efficiency of a well regulated militia.” They are
    also in “common use” today, and probably far more so than in
    1789. Nevertheless, it has been suggested by some that only
    colonial-era firearms (e.g., single-shot pistols) are covered by
    the Second Amendment. But just as the First Amendment free
    speech clause covers modern communication devices unknown
    to the founding generation, e.g., radio and television, and the
    Fourth Amendment protects telephonic conversation from a
    “search,” the Second Amendment protects the possession of the
    modern-day equivalents of the colonial pistol. See, e.g., Kyllo
    v. United States, 533 U.S. 27, 31-41 (2001) (applying Fourth
    Amendment standards to thermal imaging search).

  13. On May 2, 2011 at 2:45 pm, scott s. said:

    Other than possibly protecting domestic manufacturers, I’ve never seen a public policy benefit from the sporting purposes test.

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This article is filed under the category(s) Featured,Federal Firearms Laws,Firearms,Obama Administration,Second Amendment and was published May 1st, 2011 by Herschel Smith.

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