It is virtually impossible to ascertain the scope of the domestic ammunition market in the United States. No government agency releases any data on the manufacture, importation, or sale of ammunition in this country.16 In 2012, Oxfam International estimated that the global trade in ammunition for small arms and light weapons was $4.3 billion per year.17 Estimates suggest that Americans buy 10 to 12 billion ammunition cartridges annually, including the ammunition purchased by military and law enforcement.18 In December 2016, CNN reported that ammunition imports into the United States had risen by more than 200 percent compared with the previous year, estimating that a total of 17,850 tons of ammunition had been imported over the one-year period specifically for civilian use.19
In many respects, federal law treats the possession, sale, and transfer of ammunition in the same way as firearms. Most significantly, individuals who are prohibited from buying and possessing guns under the Gun Control Act for reasons such as felony convictions, domestic violence-related misdemeanor convictions, or being subject to a restraining order are similarly prohibited from buying and possessing ammunition. It is also illegal for someone to sell or give firearms or ammunition to a prohibited person.20 Most federal age restrictions on the sale and possession of firearms also apply to ammunition: Individuals must be at least 18 years old to possess handguns and ammunition that is suitable only for use in handguns and must be at least 21 years old to buy this type of gun and ammunition from a licensed gun dealer. Individuals must be at least 18 years old to buy long guns—rifles and shotguns—and ammunition for long guns from a licensed gun dealer.21
However, there are far fewer restrictions on domestic commerce in ammunition, due in large part to the passage of the Firearm Owners Protection Act in 1986, one of the National Rifle Association’s (NRA) signature federal legislative accomplishments.22 This law, in part, eliminated the requirement that businesses seeking to sell ammunition obtain a license from ATF or retain any records related to ammunition sales. As a result, under current law, while individuals who are “engaged in the business”23 of selling firearms must obtain a federal firearms license from ATF and are therefore subject to regulatory oversight by the agency, no such requirement exists for individuals and businesses that sell ammunition in any quantity or frequency.24 This means that individuals can legally operate a substantial business selling ammunition without any oversight or scrutiny by the federal government or any requirement to keep records about these sales.
In addition, while federal law requires licensed gun dealers to conduct a background check prior to every gun sale to ensure that prospective purchasers are eligible to receive a firearm, this requirement does not apply to sales of ammunition.25 This means that while dealers cannot sell ammunition to an individual “knowing or having reasonable cause to believe” that the person is prohibited from possessing firearms or ammunition, there is no affirmative obligation to take any steps to verify their eligibility. Furthermore, there is no corollary responsibility for licensed gun dealers to keep records of ammunition sales in the same way they are required to keep records of firearm sales. As a result, under federal law, every ammunition sale in the United States can proceed without a background check and without any records kept, regardless of the type or quantity of ammunition purchased.
There is also no obligation for gun dealers to alert law enforcement when an individual appears to be stockpiling large quantities of ammunition. While all dealers are required to notify ATF when an individual buys two or more handguns—or semi-automatic rifles in four Southwest border states26—in a five-business-day period, there is no similar reporting obligation for sales of ammunition in any quantity. This means that an individual who is prohibited from possessing firearms and ammunition can amass a substantial amount of ammunition without ever drawing the attention of law enforcement.
Bulk ammunition sales are made even easier by another gap in federal law that allows individuals to buy and sell ammunition across state lines without restrictions. Under federal law, individuals can only buy a handgun from an out-of-state seller if it is first shipped to an in-state dealer; individuals can buy long guns from an out-of-state seller if the parties meet in person to complete the transaction or if the sale is facilitated by a gun dealer in either state.27 None of these restrictions apply to ammunition sales, meaning that an individual can buy any quantity of ammunition online from an out-of-state vendor, without undergoing a background check, and have it shipped directly to their home. Following the mass shooting at an Aurora, Colorado, movie theater in July 2012 perpetrated by an individual who purchased 6,000 rounds of ammunition from an online seller,28 The Guardian published an investigation highlighting precisely how easy it is to buy an enormous stockpile of ammunition online. Reporters demonstrated that they would be able to purchase 18,000 .223-caliber rounds, suitable for use with an AR-15-style assault rifle, from one website and an additional 41,000 rounds from another.29
Additionally, there are no federal requirements regarding how large quantities of ammunition must be stored to prevent fire or explosion. When ammunition interacts with fire, the heat from the flames causes the cartridges to explode. In these instances, the risk of injury is great both to those near the site of the fire and to firefighters seeking to stop the flames from spreading. The dangers of ammunition stockpiles exploding during fires is real, with numerous instances of these explosions occurring each year.30 When an Arizona home caught fire in February 2016, hundreds of rounds of ammunition exploded, and a firefighter was struck in the face with a round, saved from injury only because of his equipment.31 In March 2012, a mobile home in Apache Junction, Arizona, caught fire, with two adults and two children dying from asphyxiation. Reporting indicates that the fire originated in a room where reloading ammunition powder was stored and that ammunition rounds were exploding while firefighters were attempting to extinguish the flames; reporting also indicates that the bullet fire prevented bystanders from helping the victims get out of the house.32 According to the Giffords Law Center to Prevent Gun Violence, only one state, Washington, currently has a law addressing ammunition storage that focuses on the fire safety risks associated with ammunition.33
Federal law also does not impose age restrictions on the possession of long gun ammunition. While individuals under the age of 18 are not permitted to possess handgun ammunition, there is no similar age limitation on the possession of long gun ammunition, including ammunition for semi-automatic assault rifles. Additionally, while licensed gun dealers may not sell long gun ammunition to individuals under age 18, there is no similar restriction on private sellers, meaning that individuals who are not licensed dealers are free to sell any quantity of long gun ammunition to any individual of any age.34
Since 1919, sales of both firearms and ammunition have been subject to an excise tax35 collected by the manufacturer or importer based on the domestic wholesale price.36 The current tax on handguns was established in 1955 and is 10 percent of the wholesale price, while the tax on long guns and ammunition was set in 1941 as 11 percent of the wholesale price.37 The revenue generated from these taxes on firearms and ammunition—$624.8 million in fiscal year 2018—is allocated to the Federal Aid to Wildlife Restoration Fund, also known as the Wildlife Restoration Trust Fund, which is dedicated to specific wildlife restoration projects and hunter safety and education efforts.38 Currently, there is no excise tax on firearms or ammunition that is intended to raise revenue for gun violence prevention or abatement efforts.39
Compounding concerns about public safety, ammunition is excluded from the items under the oversight and regulation of the U.S. Consumer Product Safety Commission as a result of legislation enacted in 1976.40.” Items in 26 U.S.C. § 4181 include pistols, revolvers, firearms, shells, and cartridges.] The general lack of oversight on the production of ammunition has resulted in injuries and death for both users and producers of ammunition.41 To fill the federal oversight gap, gun owners must rely on communicating with each other on the dangers and best practices for purchasing ammunition. Online forums provide information about different voluntary recalls of ammunition and best practices for buying ammunition at gun shows.42
Another large part of the ammunition industry that currently evades any formal regulation or oversight is the practice of making ammunition at home. Some gun owners choose to make their own ammunition as a hobby, rather than purchase ready-made ammunition from stores, as a means to create an ideal form of ammunition for their guns or in an effort to save money.43 This process—known as reloading or handloading ammunition—is fairly simple, with the internet’s gun-enthusiast community providing resources on the process as well as advising where to purchase the different components and tools needed to make ammunition. While some people create ammunition solely for their own personal use, others sell reloaded ammunition in private transactions or at gun shows.44 There are currently no federal systems for regulation or oversight of the homemade ammunition industry, meaning that there is no existing mechanism to determine how many people participate in the practice of making their own ammunition; how much is sold on the commercial market; or how much reloaded ammunition exists within the United States. Moreover, there are no systems in place for inspection of homemade ammunition to ensure it is properly reloaded and will not cause injury to the user.
When it comes to the sale and possession of ammunition, a few states have acted to fill some of the regulatory gaps in federal law. According to an analysis of state laws by the Giffords Law Center to Prevent Gun Violence, California and New York are the only two states that require background checks for ammunition sales.45 Another four states require individuals to obtain some type of license or permit before purchasing ammunition, the application for which requires a background check.46 Seven states and Washington, D.C., require individuals who wish to sell ammunition to obtain a license from a state or local agency.47 California recently enacted a state law restricting internet sales of ammunition and requiring individuals purchasing ammunition online to pick their orders up in person from a licensed gun dealer.48 In addition, a few municipal governments have enacted local excise taxes on ammunition to help raise revenue for violence prevention efforts or public safety efforts, including Seattle49 and Cook County, Illinois.50 Maryland regulates the practice of reloading by requiring a license to load or reload small-arms ammunition and by requiring a license for the possession of more than 5 pounds of either smokeless powder or black powder used for reloading ammunition cartridges.51
Uniquely dangerous ammunition and ammunition accessories
The purpose of any type of bullet is to penetrate the intended target and cause some degree of damage or injury. However, just as there are multiple types and calibers of firearms, there is also a wide variety of types of ammunition that vary in their wounding and lethality potential. The industry continues to advance ammunition design to include new features or increase the so-called stopping power of the bullet. As the ammunition industry has continued to evolve and innovate, policymakers largely have failed to keep pace and update laws and regulations to ensure that appropriate restrictions are put in place for ammunition that poses increased risks to community safety.
Congress has determined that there is one type of ammunition that poses a heightened risk to public safety and warrants additional regulation: armor-piercing ammunition. The dangers of bullets capable of penetrating soft body armor—commonly referred to as bulletproof vests—were repeatedly raised by law enforcement organizations in the late 1970s and early 1980s.52 Legislative proposals to ban this specific type of ammunition gained traction following the mass shooting at the San Ysidro McDonald’s in San Diego on July 18, 1984, which was the worst mass shooting at that time in modern U.S. history.53 A gunman armed with multiple firearms and hundreds of rounds of ammunition, including armor-piercing bullets, opened fire in the restaurant, killing 21 people and injuring 19 others.54 Legislation to ban the commercial sale and possession of armor-piercing bullets was championed by then-Rep. Mario Biaggi (D-NY) and then-Sen. Daniel Patrick Moynihan (D-NY), with Biaggi noting, “the lives of the police officers on the scene (in San Ysidro) [sic] were in far greater danger than they would have been if [the shooter] had used conventional ammunition.”55 The Law Enforcement Officers Protection Act of 1986 (LEOPA) passed despite strong opposition from the NRA.56 On August 28, 1986, during the signing ceremony, then-President Ronald Reagan stated, “Certain forms of ammunition have no legitimate sporting, recreational or self-defense use and thus should be prohibited.”57
LEOPA dramatically restricted the manufacture, importation, and sale of this type of ammunition, largely banning it with few exceptions.58 For ammunition to fall within the statutory definition of armor piercing, it must be (1) capable of being fired from a handgun and be constructed entirely from certain specified metals—tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or (2) larger than .22 caliber, “designed and intended” to be used in a handgun, and have a jacket that weighs more than 25 percent of the total weight of the round.59 This law specifically exempts from the definition of armor-piercing ammunition “a projectile which the Attorney General finds is primarily intended to be used for sporting purposes.”60
The authority to determine whether a particular type of ammunition meets the statutory definition of armor piercing has been delegated to ATF. For the first two decades that LEOPA was in effect, ATF received relatively few requests from the gun industry to consider whether a specific type of ammunition was exempt from the armor-piercing ammunition ban under the sporting purposes exemption.61 However, in the mid-2000s, the agency began receiving higher numbers of exemption requests due to increased restrictions on lead-based ammunition in many states and the increased availability of semi-automatic handguns capable of firing rifle ammunition.62 In early 2015, as a result of this increase in exemption requests, ATF drafted a proposed framework for how the agency would decide whether a particular type of ammunition met the sporting purpose exemption. Under this proposed framework, rifle ammunition would presumptively qualify for the exemption if the only type of handgun that it could be fired from were a single-shot handgun. Any rifle ammunition that could be fired from a revolver or semi-automatic handgun would not receive the benefit of this presumption and would be banned.63 The draft framework document then explained that certain specific types of ammunition that had previously qualified for the sporting purpose exemption—specifically a very popular type of rifle ammunition known as green-tip ammunition—would no longer meet the requirements for the exemption and would be banned because they were capable of being fired from certain semi-automatic handguns.64 Upon publishing the draft framework, ATF opened up a comment period to receive feedback from stakeholders.65
The proposal was met with fury from the gun lobby, which claimed that it was an effort by the Obama administration to undermine gun rights without congressional support.66 The NRA launched a campaign for people to contact ATF and state their opposition to the proposal, resulting in more than 80,000 comments being sent to the agency.67 Members of Congress in both chambers sent letters to ATF condemning the framework and arguing that it violated the Second Amendment.68 Shortly after publishing the draft proposal, ATF released a notice stating that because “the vast majority of the comments received to date are critical of the framework,” the agency would not move forward with issuing a final framework and would continue to study the issue.69 In a tweet announcing this decision, the agency stated, “You spoke, we listened.”70 Since withdrawing the proposed framework, ATF has not publicly shared any information regarding how it is handling armor-piercing exemption requests or released any data on the number of such requests and how many were granted or denied.
In addition to LEOPA, 20 states and Washington, D.C., have enacted laws banning the manufacture, sale, purchase, possession, or transfer of armor-piercing ammunition.71
The largest rounds of ammunition legally available to civilians in the United States are .50-caliber bullets.72 This round was invented in the early 20th century to be used with the Browning machine gun, a battle weapon capable of destroying lightly armored cars, military aircraft, and ammunition storage dumps.73 The powerful .50-caliber Browning machine gun served as inspiration for gun enthusiast Ronnie Barrett’s design of the .50-caliber shoulder-fired rifle, which he patented in 1987 as an anti-armor gun.74 While the Barrett firearms company marketed these weapons to military forces, they also advertised the anti-armor sniper rifles to U.S. civilians.75 The weapon’s popularity on both markets resulted in other manufacturers replicating the .50-caliber rifles, giving civilians and military gun buyers more options for .50-caliber guns.76
The destructive potential of these firearms cannot be overstated. In 2005, the New York City police commissioner conducted a test to compare the power of a .50-caliber round against a smaller round by firing a .50-caliber bullet and a standard military .308-caliber bullet—the standard NATO rifle cartridge—from rifles into a 0.5-inch thick steel barrier from 300 yards away. The .308 round bounced off the metal plate, while the .50-caliber round easily penetrated the metal barrier.77 Lt. Colonel Norman A. Chandler, a retired Marine and sniper rifle expert, explained the destructive power of a .50-caliber sniper rifle in stark terms: “Imagine a pair of Marines with an infantry rifle that at 2000 yards or more could simply and systematically wipe out an entire airfield, or truck park, or radar installation.”78
While some gun enthusiasts minimize the risk of .50-caliber rifles and their ammunition as nothing more than a “high-end adult recreational toy,”79 there is ample evidence that these firearms pose a risk to public safety in the United States and abroad. From 2013 through 2017, 3,225 .50-caliber rifles in total were recovered and traced in connection with a crime, or more than one every day.80 According to a 1999 U.S. Government Accountability Office report, an investigation conducted by multiple federal law enforcement agencies, “revealed that .50-caliber semiautomatic rifles have been linked to domestic and international criminal activity. We have established a nexus to terrorist groups, outlaw motorcycle gangs, international drug cartels, domestic drug dealers, religious cults, militia groups, potential assassins, and violent criminals.”81 The most high-profile incident involving these firearms was the infamous 1993 gun battle in Waco, Texas, when members of the Branch Davidians cult used .50-caliber rifles in a confrontation with federal agents.82
The lack of regulations around both .50-caliber rifles and their corresponding ammunition also has serious implications for international arms trafficking. In 2005, the CBS news program “60 Minutes” reported on the ease with which .50-caliber firearms could be purchased, the dangers of these weapons, and the lack of regulations enabling the armament of international armed groups. In an interview, Florin Krasniqi, a gunrunner for the Kosovo Liberation Army (KLA), explained, “The weapon of choice was a .50-caliber rifle. You could kill a man from over a mile away. You can dismantle a vehicle from a mile away.”83 Krasniqi also explained that U.S. gun stores were the source for these weapons: “You just have to have a credit card and clear record, and you can go buy as many as you want. No questions asked. … Most of the dealers in Montana and Wyoming don’t even ask you a question. It’s just like a grocery store.”84 The KLA was not the only armed group to rely on .50-caliber bullets and firearms. In February 2015, members of the Caballeros Templarios drug cartel engaged in a battle with law enforcement officials in the Mexican state of Michoacán.85 The state government supported the police operation with a helicopter, which the cartel shot down with a .50-caliber Barrett rifle.86
Federal law imposes no additional restrictions on the sale or possession of this type of ammunition. In fact, because .50-caliber ammunition is fired from a rifle rather than a handgun, it is subject to the lowest level of federal regulation and can be legally purchased by individuals under the age of 18.87 A few states have regulations around .50-caliber ammunition: Connecticut and Washington, D.C., prohibit the sale and possession of .50-caliber ammunition, and California bans the sale and possession of any ammunition larger than .60 caliber.88 Additionally, California, Connecticut, Maryland, and Washington, D.C., place restrictions on .50-caliber rifles: California bans the manufacture, distribution, transportation, importation, possession, sale, or transfer of any .50-caliber rifle without a permit from the California Department of Justice;89 Connecticut prohibits the possession, import, transport, transfer, or sale of specific models of .50-caliber rifles under the state’s prohibition of assault weapons;90 Maryland regulates .50-caliber rifles, which are categorized as assault weapons under state law;91 and in Washington, D.C., .50-caliber rifles are not registrable, which subsequently bans the possession, sale, and transfer of these firearms in the district.92
All semi-automatic firearms and some pump-action and bolt-action firearms load ammunition from a magazine, which can either be permanently fixed to the firearm or detachable. Magazines vary widely in terms of how many cartridges they can hold, with many retailers offering 20-, 30-, 50-, and 100-round magazines and drums.93 Magazines that hold more than 10 rounds of ammunition are commonly referred to as high- or large-capacity magazines.94 Improving the functionality of high-capacity magazines has been a focus of the gun industry in recent years. While previous generations of high-capacity magazines tended to jam or malfunction, recent innovation in the design and materials used to make these magazines has resulted in a new generation of magazines that can hold upward of 40 rounds and maintain high functionality.95
High-capacity magazines, when paired with semi-automatic assault rifles, can dramatically increase the lethality of a shooting. On August 4, 2019, in Dayton, Ohio, a shooter armed with an AR-style firearm and a 100-round drum magazine fired 41 bullets in roughly 30 seconds, striking 26 people and killing nine.96 An analysis conducted by Everytown for Gun Safety determined that in mass shootings that took place from January 2009 through July 2015 and involved either assault weapons or high-capacity magazines, 155 percent more people were shot and 47 percent more people killed than in mass shootings without.97
While the risks of high-capacity magazines are primarily discussed in the context of high-profile mass shootings, these magazines are also increasingly recovered by law enforcement in connection with episodes of gun violence in urban communities. A 2017 study determined that weapons equipped with high-capacity magazines comprised 22 percent to 36 percent of guns used in crimes in the United States.98 In June 2018, Baltimore’s interim Police Commissioner Gary Tuggle reported that one-third of the guns recovered in connection with criminal investigations in Baltimore had a magazine capacity of more than 10 rounds. From January 1, 2017, to April 29, 2018, the Baltimore Police Department recovered 890 guns that had a magazine capacity of more than 10 rounds.99 A review by The Trace, an independent news organization covering gun-related issues in the United States, similarly found numerous examples of high-capacity magazines being used in local shootings.100 Unfortunately, most police agencies are not required to track or report the use of high-capacity magazines in local crime, so it is difficult to ascertain the true scope of this problem.
These firearm accessories also pose risks beyond U.S. borders. An analysis from Stop US Arms to Mexico based on data received from Mexico’s secretary of national defense indicated that, despite Mexico’s regulations banning the sale of high-capacity magazines, more than 112,000 high-capacity magazines have been recovered from crime scenes in Mexico since 2011.101 The United States is a source for firearms, including assault weapons, for criminal organizations in Mexico, with trace data of guns recovered from crime scenes in Mexico revealing that the United States is the source nation for the majority of these guns.102 Reporting has found that high-capacity magazines are also trafficked from the United States to Mexico.103
Magazines with a capacity of more than 10 rounds were banned under U.S. federal law for 10 years as part of the 1994 Assault Weapons Ban but have been legal since the law was allowed to expire in 2004. Currently, only nine states and Washington, D.C., ban or otherwise limit the ability to buy and possess these magazines.104
Hollow point bullets, tracer rounds, and novelty ammunition
As with any loosely regulated consumer product industry, the gun and ammunition industry continues to innovate and develop new products to increase profits, including new types of ammunition. Innovation in the ammunition industry usually involves trying to increase lethality—what the industry often refers to as “stopping power”—or offer a new or novel feature when fired. One of the early examples of dangerous innovation in ammunition was the creation of the hollow point or expanding bullet. First developed in the 19th century, hollow point bullets are designed to expand upon impact, as opposed to full metal jacket ammunition, which typically remains intact after striking a target.105 When a hollow point bullet hits a soft target, the pressure of impact coupled with the hollow-tip structure causes the bullet’s tip to expand like a mushroom before erupting, exposing the sharp metal edges of the bullet cladding or jacket.106 Because of this expanding design, the impact of a hollow point bullet striking a human body typically results in a more serious injury than a full metal jacket round. Dr. Leana Wen, an emergency physician and the former Baltimore health commissioner, describes the impact of an expanding bullet on a human body: “Once they enter the body, they fragment and explode, pulverizing bones, tearing blood vessels and liquefying organs.”107 Contributing to the lethality of these bullets are the complications facing medical professionals treating patients who have been shot. The jagged-edge effect of an expanded bullet places medical professionals at risk of injury, with the sharp edges of the bullet capable of ripping surgeon’s gloves, exposing both the doctor and the victim to infection.108
Hollow point ammunition was first developed as military ammunition, although in 1899 at the Hague Convention, the leading powers included a ban on expanding bullets in international warfare in their newly established the norms around war; the United States declined to sign on to this provision.109 Since their introduction into the nonmilitary market, hollow point bullets have become a popular type of ammunition among both law enforcement and self-defense-minded civilians. Law enforcement officers in many jurisdictions began adopting hollow point rounds in the 1970s because of the reduced risk of overpenetration—when a bullet passes through the intended target and strikes another person or object—which was common with other types of ammunition.110 Many civilians also prefer to use hollow point bullets in a self-defense scenario, partly to reduce risk of shooting through an assailant and harming an innocent bystander.111
Hollow point ammunition has been tied to some of the deadliest massacres in the United States. In his manifesto, the perpetrator of the August 3, 2019, mass shooting in El Paso, Texas, who killed 22 people and injured dozens more, wrote specifically about his hopes to secure 8M3 rounds of ammunition to increase the lethality of his attack.112 This specific type of ammunition is a hollow point bullet that, when fired from a rifle, fragments in the body and increases the severity of injuries.113 The Las Vegas shooter had stockpiles of hollow point ammunition, which he used to shoot more than 400 people and kill 58.114 The perpetrator of the Sandy Hook shooting posted online about a mass shooting committed with hollow point bullets before opening fire in an elementary school, using bullets that fragmented in the bodies of his 26 victims—20 of whom were first grade students.115
Hollow point ammunition is not currently subject to any type of increased regulation under federal law. However, in the early 1990s, there was an intense national debate about whether this type of ammunition was appropriate for civilian use, with particular attention raised around the newly introduced Winchester Black Talon bullet. The Black Talon was designed to expand and expose several sharp metal points in a star-like pattern, making the bullets remarkably challenging to remove without causing further harm to both the victim and the surgeon.116 The Black Talon became ubiquitous in trauma centers throughout the country, and its presence was documented in multiple mass shootings in the 1990s, including the shooting at the Pettit & Martin law firm in San Francisco, where 14 people were shot, eight fatally, and the Long Island Rail Road massacre, where 23 people were shot, six fatally.117 Following advocacy efforts from trauma surgeons and physicians and congressional efforts to dramatically increase the taxes on these bullets, which were ultimately unsuccessful, Winchester chose to stop marketing ammunition under the Black Talon name. However, the company continued to sell an identical offering under the innocuously named Ranger line, which is available to both law enforcement and civilians.118 Only New Jersey currently has restrictions on hollow point ammunition, prohibiting the possession of these bullets except within the possessor’s home.119
In addition to innovating to increase the lethality of ammunition through designs such as expanding bullets, the firearm and ammunition industry also constantly innovates to create other types of ammunition that have novel or exotic features and appeal to hobbyists. These novelty bullets, while not representative of a large market share in the ammunition industry, are remarkably dangerous in design. For example, flechette ammunition will transform a bullet into a dart-like projectile; bolo-shell ammunition is a shotgun shell that expels two or more metal balls connected by metal wires when fired; frangible or exploding bullets are designed to break apart upon contact; and dragon’s breath ammunition is a shotgun shell filled with exothermic pyrophoric mesh metal that, when fired, mimics a small flamethrower.120 Additionally, tracer rounds are made with flammable material that produces a trail of light illuminating the trajectory of the bullet, designed to aid shooters firing in low-visibility scenarios. These rounds are used by military forces but are also available on the civilian market. Law enforcement officials recovered hundreds of rounds of tracer bullets from the hotel room used by the perpetrator of the 2017 Las Vegas shooting.121
There is currently no federal oversight over the development, marketing, or sale of any of these types of ammunition, although a few states have limited the possession or sale of novelty ammunition.122 Eight states have banned the possession, purchase, transfer, or manufacture of exploding ammunition.123 It is unlawful in California, Florida, and Illinois to manufacture, transfer, purchase, or possess flechette ammunition.124 Florida, Illinois, and Iowa also have prohibitions on the possession, purchase, manufacture, or transfer of dragon’s breath ammunition.125 Bolo shells cannot be sold or possessed in Florida and Illinois,126 and California and Connecticut limit access to tracer ammunition.127
Public lands have a strong history and connection to the nation’s hunting and fishing traditions. Sportsmen and sportswomen are often some of the biggest champions for public lands, waters, and wildlife, and hunters directly support wildlife conservation through funding mechanisms including the duck stamp—a hunting license and conservation revenue stamp—and an excise tax on firearms, ammunition, and other related equipment.128 The vast majority of public lands are open to hunting and recreational opportunities, including a majority of national preserves, wildlife refuges, national forests, and lands managed by the Bureau of Land Management (BLM).129
The use of lead ammunition is prevalent on public lands, but it is now widely known that lead can contaminate the surrounding ground or water and poison birds and other wildlife when ingested. The effects of toxic ammunition and tackle are widespread, killing up to 20 million birds and other animals each year and serving as one of the primary reasons that the California condor is still on the endangered species list.130 Lead poisoning affects more than 130 species, including grizzly bears, eagles, frogs, deer, hawks, ravens, and turkey vultures.131 It can also be dangerous to hunters and other people who consume animals killed with lead bullets.132
Local, state, and federal governments have begun to address the effects of lead poisoning on wildlife and people from hunting and fishing activities. Since 1991, nontoxic shot is required nationwide for waterfowl hunting and when hunting with a shotgun on wildlife refuges and waterfowl production areas.133 At least 30 states have some restriction on when or where toxic shot may be used,134 and California recently instituted a complete ban on the use of lead ammunition for hunting purposes anywhere in the state.135
In 2016, the Obama administration expanded these policies to further reduce lead poising and protect vulnerable wildlife species through a director’s order issued by the U.S. Fish and Wildlife Service (FWS) that banned the use of lead ammunition and fishing tackle on all FWS-managed lands. However, the order was short-lived as it was overturned almost immediately by the Trump administration to the cheers of organizations such as the NRA.136
In addition to policies focused on strengthening laws related to the sale and possession of firearms, policymakers must also address significant gaps in the current law regarding ammunition that contributes to the nation’s epidemic of gun violence. While these recommendations are focused on action at the federal level, many of them could also be implemented by state legislatures and indeed have been in some states.
Require background checks for ammunition sales
While current federal law prohibits certain people from buying ammunition for reasons such as history of criminal convictions, domestic violence restraining orders, or age, there is no requirement that a seller of ammunition take affirmative steps to ensure that a prospective buyer is, in fact, eligible to make such a purchase. In 2016, California voters passed a ballot measure requiring people buying ammunition from gun dealers to first show identification and pass a background check. The law finally went into effect on July 1, 2019.137 New York has also enacted a law requiring background checks for ammunition sales that has not yet been implemented.138
Congress should enact a new law requiring background checks for all ammunition sales, including sales by licensed gun dealers and private sellers. Such background checks could be conducted in the same manner as background checks for gun sales and would help ensure that people prohibited from possessing guns and ammunition do not continue to have easy access. This could also be accomplished by requiring individuals seeking to purchase ammunition to first obtain a license or permit, which would require a background check. Such a permit could be valid for a set term of years and allow the individual to purchase ammunition without requiring a new background check for each subsequent purchase. Four states and Washington, D.C., currently require some form of license or permit to purchase ammunition.139
Legislation to require background checks for ammunition sales has been introduced in this Congress by Rep. Debbie Wasserman Schultz (D-FL) and Sens. Richard Blumenthal (D-CT) and Chris Murphy (D-CT).140 Their proposed legislation, entitled “Jaime’s Law” in memory of Jaime Guttenberg who was murdered in the shooting at Marjory Stoneman Douglas High School in 2018, would also create reasonable exceptions to the background check requirement, including for individuals who have a valid state license to possess a firearm issued for certain intrafamilial or emergency ammunition transfers.
Require sellers of ammunition to obtain a federal firearms license
Individuals or businesses that sell ammunition as part of their inventory should be required to obtain a federal firearms license from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and be subject to the same level of oversight as vendors of firearms. This was the law in effect prior to the enactment of the Law Enforcement Officers Protection Act of 1986 (LEOPA), and this licensing requirement should be reinstated to ensure appropriate oversight over retail commerce in this dangerous consumer product. According to the Giffords Law Center to Prevent Gun Violence, five states and Washington, D.C., have imposed state-level licensing requirements for sellers of ammunition.141 In January 2019, Rep. Bonnie Watson Coleman (D-NJ) introduced the Stop Online Ammunition Sales Act of 2019, which would, in part, require licensing for ammunition vendors.142
Increase the minimum age to buy long gun ammunition
Under current law, individuals under the age of 21 are not permitted to buy handgun ammunition from either a licensed dealer or a private seller. However, different standards apply for long gun ammunition, with current law restricting licensed gun dealers from selling long gun ammunition to individuals under the age of 18 and placing no age restriction on the sale of such ammunition by private sellers. This law should be updated to impose the same age restrictions on the purchase of handgun and long gun ammunition regardless of the type of seller. Congress should act to increase the minimum age to purchase long gun ammunition to 21 and bring sales of long gun ammunition in line with that of handgun ammunition. Such a law could include reasonable exceptions for individuals in the military or law enforcement and for target shooting or hunting.
According to the Giffords Law Center to Prevent Gun Violence, 16 states and Washington, D.C., have enacted age-based restrictions on the purchase of ammunition.143 In early 2019, Rep. Ted Deutch (D-FL) introduced legislation to increase the lawful age to purchase all types of ammunition to 21 years of age.144 Sen. Dianne Feinstein (D-CA) has also introduced legislation, that would, in part, restrict sales of ammunition that is suitable for use in a semi-automatic assault weapon and high-capacity ammunition magazines to individuals under the age of 21.145
Increase regulation of online and interstate ammunition sales
In addition to being able to buy ammunition without a background check, under current law, individuals are free to buy any quantity of ammunition online and from out-of-state vendors without ever having to leave their home. Congress should strengthen the law regarding ammunition sales by requiring that individuals who purchase ammunition from an online or out-of-state vendor have that ammunition shipped to a licensed gun dealer in their state of residence and complete the transaction in person at that dealer. The in-state dealer should then be required to conduct a background check before completing the sale. This in-person requirement would bring the laws regarding ammunition sales in line with those for handgun sales and help prevent individuals who are prohibited from gun possession from easily being able to obtain thousands of rounds of ammunition with complete anonymity and no law enforcement oversight. Rep. Watson Coleman’s proposed legislation would also prohibit online-only ammunition sales and implement an in-person appearance to complete online ammunition sales.146
Require reporting of bulk sales of ammunition
Under current law, individuals can amass an enormous arsenal of ammunition without ever attracting the attention of law enforcement. In October 2014, federal agents recovered more than 30,000 rounds of ammunition from the home of a person with a felony conviction only after they received information that he had been using a straw purchaser to obtain weapons and ammunition.147 In September 2018, San Diego police discovered that a man had stockpiled 75,000 rounds of ammunition in his home; the stockpile was uncovered when the police were serving a gun violence restraining order on the man, who was then under arrest for shooting a city employee.148 Police in Shirley, Massachusetts, conducted a raid on a home where they found 35,000 rounds of ammunition, 47 firearms, and 44 homemade silencers.149
Congress should require licensed gun dealers to report to ATF when an individual purchases a certain amount of ammunition within a short time period. Such a law could be based on the current federal law requiring gun dealers to report to ATF when an individual buys more than two handguns within five business days. Congress should consult with ATF and law enforcement to determine the appropriate threshold for this type of reporting requirement. Just as the multiple handgun sale reporting requirement has provided ATF with valuable information about potential cases of gun trafficking, bulk sale reporting of ammunition could alert law enforcement to individuals who may be planning mass attacks or are engaging in illegal gun and ammunition trafficking. Rep. Watson Coleman’s legislation would, among other things, require gun dealers to report to ATF when an individual buys more than 1,000 rounds of ammunition within five business days.150
Improve implementation of the federal ban on armor-piercing ammunition
When Congress enacted LEOPA in 1986, there was a clear distinction in the gun industry between rifles and handguns and the separate types of ammunition used in each. However, recent innovation in the industry has led to a blurring of that line, and there is now an entire subcategory of assault pistols designed to mimic the power of semi-automatic assault rifles and fire their ammunition.151 Regardless of whether this innovation was intended to undermine the ban on armor-piercing ammunition, it has had that effect.
ATF recognized this problem in 2015 and proposed a framework for how the agency could make determinations on whether a particular type of ammunition made of the designated metals and capable of being fired from a handgun qualified for the sporting purposes exemption or would be banned under LEOPA. Under this framework, rifle ammunition that could only be fired from a single-shot handgun would be presumptively exempt from the ban under the sporting purposes exemption, while ammunition that was capable of being fired from a revolver or semi-automatic handgun would not receive the benefit of the exemption. ATF should revive and implement this proposed framework to help ensure that the ban on armor-piercing ammunition enacted in LEOPA is fully implemented. Rep. Elliot Engel (D-NY) has introduced legislation to codify the sporting purpose presumption from the ATF proposed framework.152 Another bill introduced by Rep. Val Demings (D-FL) would require that any handguns capable of firing rifle ammunition be registered with ATF under the National Firearms Act in the same manner that fully automatic machine guns must be registered under current law.153
Ban high-capacity ammunition magazines
The use of high-capacity magazines in a shooting, particularly when paired with a semi-automatic assault rifle, can significantly increase the potential lethality of a shooting.154 The Federal Assault Weapons Ban of 1994, which included a ban on magazines capable of holding more than 10 rounds, was found to be effective at reducing the use of these dangerous accessories. According to an analysis conducted by the Washington Post, during the 10-year period of the federal ban, police in Virginia saw a drop in weapon seizures involving high-capacity magazines. In the years following the expiration of the ban, the rate of weapons seized that used high-capacity magazines increased.155 Given the efficacy of the previous ban and the realities of the increased lethality of shootings using high-capacity magazines, policymakers should ban the possession, sale, manufacture, import, or transfer of magazines capable of holding more than 10 rounds. Rep. Deutch and Sen. Robert Menendez (D-NJ) introduced legislation to this effect in this Congress.156 This policy must also require that individuals in possession of high-capacity magazines either destroy them or surrender them to law enforcement within a predetermined period following the enactment of the ban, similar to the mandatory surrender of bump stocks following the implementation of a new regulation banning them in 2019.157
Ban .50-caliber ammunition
Current federal law imposes no restrictions on the sale and possession of .50-caliber rifles and their ammunition as long as the individual seeking to possess them is not prohibited from gun possession. Indeed, because .50-caliber ammunition is used in long guns, it is subject to the less restrictive federal laws regarding the sale of long gun ammunition, which, among other things, allow it to be sold to individuals under the age of 18 by an unlicensed seller. This type of ammunition has no legitimate civilian use and poses extreme risks to public safety both in the United States and when it is trafficked abroad. Congress should ban the sale and possession of this type of ammunition for civilian use. In addition, Congress should ban or more stringently regulate the sale and possession of .50-caliber sniper rifles. The current assault weapons ban legislation introduced by Sen. Feinstein and Rep. David Ciccilline (D-RI) would ban certain types of .50-caliber rifles.158
Increase taxation on ammunition to fund gun violence prevention programs
Gun violence in the United States is estimated to cost $226 billion annually,159 yet excise taxes on the instrumentation of that violence—ammunition—have not been raised for nearly 80 years. Stunningly, the money raised by those taxes—$624.8 million in fiscal year 2018—is directed toward wildlife refuge and hunter training programs rather than efforts designed to reduce the impact of gun violence on U.S. communities. Congress should double the current excise tax rate on ammunition to 20 percent of its wholesale price and direct that new revenue toward federal programs focused on community-based violence intervention programs and public health-focused research into the gun violence epidemic. Congress should further increase the excise tax on ammunition that poses additional risks to public safety when in civilian hands such as hollow point bullets and other types of novelty ammunition. Reps. Danny K. Davis (D-IL) and Bill Pascrell (D-NJ) introduced a bill in 2018 that would increase the excise taxes on firearms and ammunition and direct the new funding to support violence reduction programs, gun violence research, and other gun violence prevention efforts.160
Restrict the use of lead ammunition on public lands managed for conservation
In light of the risks to wildlife, people, and public lands posed by toxic lead, the use of lead ammunition on public lands that are managed for conservation purposes should be prohibited. This specific restriction would include all FWS- and National Park Service-managed lands; BLM national conservation lands, including national monuments and wilderness areas; and roadless and wilderness areas managed by the U.S. Forest Service.161 These particular areas provide important habitats for wildlife and, therefore, should have policies that prohibit the use of a toxic substance known to poison the land and water, kill birds and other wildlife, and threaten human health. The nontoxic ammunition and tackle policy must be developed and implemented in close coordination with affected stakeholders, particularly sportsmen groups and state fish and wildlife agencies. The policy must also include adequate transition time to enable manufacturers to develop more affordable and effective alternatives as well as proactive agency plans to encourage the next generation of hunters and anglers to embrace conservation efforts.
Conduct a thorough review of the ammunition industry
There is currently very little information available about the scope and nature of the consumer ammunition industry. Apart from an annual count of individuals licensed by ATF to manufacture ammunition, there is no information available about the size of the commercial market in ammunition; what types of ammunition are sold and in what quantities; what types of ammunition are most commonly used in violent crimes; how often ammunition malfunctions and causes accidental injury; how often ammunition is stolen from the inventory of licensed gun dealers or other vendors; and how big the trend of reloading ammunition has become. With this vast knowledge gap, it is difficult for policymakers to assess emerging trends in ammunition that pose potential risks to public safety. The Firearms and Ammunition Technology Division of ATF should conduct a review of the current ammunition market to understand the emerging trends in innovation and design; assess the potential risk to public safety and the use of different types of ammunition in the commission of violent crime; and identify gaps in the current regulatory framework that make it difficult to address emerging risks. This review should also include an analysis of the trafficking of U.S.-sourced ammunition to other nations and its use in crime abroad.