Legal Commentary

Obama bans over 100,000 rifles

By David Kopel

According to The Korea Times, the Obama administration has blocked efforts by the South Korean government to sell over a  hundred thousand surplus M1 Garand and Carbine rifles into the United States market. These self-loading were rifles introduced in 1926 and 1941. As rifles, they are especially well-suited to community defense in an emergency, as in the cases of community defense following Hurricane Katrina in 2005 and Hurricane Andrew in 1992. Along with AR-15 type rifles, the M1 rifles are the quintessential firearms of responsible citizenship, precisely the type of firearms which civic responsibility organizations such as the Appleseed Project teach people how to use.  

According to a South Korean official, ?The U.S. insisted that imports of the aging rifles could cause problems such as firearm accidents. It was also worried the weapons could be smuggled to terrorists, gangs or other people with bad intentions.?

Regarding the second objection, any firearm lawfully imported into the United States would eventually be sold by a Federal Firearm Licensee who, pursuant to the background check system imposed by Congress (and endorsed by the NRA) would have to contact federal or state law enforcement to verify that the gun buyer is not prohibited from possessing firearms. Accordingly, the risk that the South Korean surplus guns might fall into the hands of gangsters or other bad people is exactly the same as with the sale of any other retail firearm in the United States. Notably, neither the M1 Garand nor the M1 carbine are concealable, and the M1 Garand is long, heavy, and bulky. Accordingly, the criminal utility of such guns is relatively low.

The second Obama administration objection is accidents. But in fact, increasing gun density in the United States has been associated with steeply declining rates of gun accidents. In 1948 there were .36 guns per person. (That is, about one gun for every three Americans.) By 2004, there was nearly one gun for every American. In 1948, there were 1.6 fatal gun accidents per 100,000 persons. By 2004, the rate had fallen by 86%, so that there were .22 fatal accidents per 100,000 persons. (For underlying data, see Appendix B of my amicus brief in Heller.)

Legally, it is indisputable that the guns are importable. Being over 50 years old, the rifles are automatically ?Curios and Relics? according to federal law. 27 CFR section 478.11. Accordingly, they are by statutory definition importable. 18 USC section 925 (e)(1). Notwithstanding the law, the Obama administration has the ability to pressure the South Korean government to block the sale of the guns.

President Obama was elected on the promise that he supported individual Second Amendment rights. His administration?s thwarting of the import of these American-made rifles is not consistent with that promise.

Full post as published by The Volokh Conspiracy on August 18, 2010 (boomark / email).