Sitting Ducks – Section Three: Lessening the Risk

A serious impediment to addressing the threat to America’s refineries and chemical industrial facilities is that many who are knowledgeable about the environmental and safety issues concerning such plants know little or nothing about guns, much less the 50 caliber sniper rifle.76 Although some environmentalists are now becoming educated to the threat of the 50 caliber sniper rifle, much broader education of policymakers, news media, and security specialists needs to be undertaken. This report aims at that goal.

Environmentalists active on this issue generally prefer a strategy of lessening the risk at the site through “inherent safety” measures, such as employing safer materials and minimizing storage volumes.77 The Violence Policy Center recognizes the merit of this strategy, but believes that the threat of the 50 caliber as a tool of terror extends far beyond this issue. Accordingly, it urges the following strategy for dealing with the deadly consequences that are certain to follow in the wake of the gun industry’s cynical campaign to market weapons of war like the 50 caliber sniper rifle to civilians.

Add 50 Caliber Sniper Rifles to the National Firearms Act of 1934

Congress should immediately amend federal law to bring 50 caliber sniper rifles under the National Firearms Act of 1934. This action would subject these weapons to the same regimen of registration, background checks, and taxation to which other weapons of war, such as machine guns and destructive devices, are currently subjected.

There should be no “grandfathering” of existing weapons to exempt them from the law, and any grace period for registration should be very short. America must know who besides Osama bin Laden possesses these deadly tools of assassination and terror.

Permanently Ban Export of 50 Caliber Sniper Rifles to Civilians

The President may not need to wait for Congress to take action on this point. He should immediately order the Department of State to review whether export of these weapons to civilians should be allowed under existing restrictions on export of weapons. If the Department finds that 50 caliber sniper rifles should not be allowed under existing restrictions, the President should call for a permanent export ban. Clearly it is not in the interest of America’s national security to allow any more 50 caliber sniper rifles to end up in the hands of international terrorists, drug lords, or common criminals.

Improve Reporting and Record-Keeping Requirements

Under current procedures, the federal Bureau of Alcohol, Tobacco and Firearms (ATF) cannot state with certainty how many 50 caliber rifles have been manufactured in the United States. Moreover, the minimum reporting requirements that apply to firearm manufacturers do not even include the reporting of model numbers.

Likewise, information regarding how many of these sniper rifles have been used in crime is extremely limited. ATF keeps track of how many times local police departments request that such weapons be traced. However, no information regarding the police department requesting the trace or the type of crime with which the weapon was associated is available.

This type of information is essential to be able to assess the level of threat posed by these weapons. ATF should immediately revamp its reporting standards to require that the manufacturers of sniper rifles report the exact number of such weapons produced each year, including the caliber and model designation and the identity of any person to whom the weapon has been transferred by the manufacturer.

ATF should also enhance the collection, analysis, and dissemination of tracing data related to all sniper rifles. Specifically, ATF should collect and make available to the public information regarding the frequency of the use of such weapons in crime, including the nature of those crimes.

Use the Civil Justice System to Hold Manufacturers Accountable

The marketing of 50 caliber sniper rifles presents a classic case, using ordinary “black letter” tort concepts, of an industry’s calculated decision to sell without restraint unnecessarily powerful weapons of war as “toys”—in reckless disregard of clearly foreseeable consequences stemming from the intended and advertised use of the product.

Given their acknowledged design purpose, 50 caliber sniper rifles are clearly qualitatively different from any other class of firearm. Other firearms sold in the civilian market are at least nominally designed and sold for sporting or supposed self-defense purposes. Fifty caliber sniper rifles, on the other hand, are designed and sold for the express purpose of killing people and destroying property. Civil courts should be prepared to recognize this fact.

Therefore, a useful strategy for effective control may lie in civil litigation, a strategy that would be enhanced if states passed legislation clearly establishing strict liability for damages resulting from the use or misuse of such weapons. Such litigation could impose tort liability, including punitive damages, for manufacturers, wholesalers, distributors, importers, retailers, and any others who participate in bringing to the civilian market any 50 caliber sniper rifle or associated gear (such as ammunition or optics) that is used to kill or injure a human being or to damage property.

In short, the gun industry should be held to the strictest standards of legal accountability available for the design and marketing to civilians of 50 caliber sniper rifles, as detailed in this report.

Ban the Sale of Armor-Piercing Ammunition

Military surplus armor-piercing (AP) and armor-piercing incendiary (API) ammunition for 50 caliber sniper rifles is widely and readily available. Although Congress has banned the manufacture of some armor-piercing ammunition, those restrictions apply only to handgun ammunition. The existing ban on armor-piercing ammunition should be updated and expanded to cover all AP and API ammunition. This would most effectively be accomplished through the promulgation of a performance standard in which ammunition is tested for its ability to penetrate bullet-resistant vests, ballistic glass, and armor, as opposed to the existing standard based on the bullet’s content.

Enact Comprehensive Regulation of the Gun Industry

Taken together, the foregoing recommendations would significantly reduce the severe and immediate threat that 50 caliber sniper rifles pose to public safety and national security. But on a broader level, the marketing of 50 caliber sniper rifles to civilians simply highlights the chronic problems that stem from the lack of comprehensive regulation of the firearms industry.

As the gun industry markets each new deadly innovation, public policy typically responds on a reactive, piecemeal basis. This must change if we are to keep up with the industry’s consistent and deadly ingenuity. The gun industry must be subject to the same type of regulation that already applies to virtually every other industry in America. The gun industry is currently exempt from even the most basic consumer health and safety laws.

Congress should act on legislation introduced by Senator Robert Torricelli (D-NJ) and Representative Patrick Kennedy (D-RI), the Firearms Safety and Consumer Protection Act. The bill would vest the Department of the Treasury with strong consumer protection authority to regulate the design, manufacture, and distribution of firearms and ammunition. The agency would be empowered to take the steps necessary to protect the public from unreasonable risk of injury resulting from the use of firearms or firearm products. The agency would be able to set minimum safety standards for firearms and ammunition, issue recalls, mandate safety warnings and, in extreme circumstances, ban certain models or classes of weapons.

This legislation would end the gun industry’s deadly immunity from regulation and permit the Department of the Treasury to respond immediately to new threats to public safety such as 50 caliber sniper rifles.

e) The current definition of armor-piercing ammunition is based on the materials employed in the construction of the projectile and the relative weight of the projectile jacket. See 18 U.S.C. § 921 (a)(17)(B) and (C).

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