In less than a month, the Trump administration intends to publish new rules for exporting firearms, including the infamous AR-15. The planned regulatory changes are part of an arms-export reform initiative that began during the Obama presidency, but the announced changes are unlike any that have come so far. At the very time we should be restricting access to military-style firearms, the new regulations aim to normalize them and boost sales. And unless Congress acts, they will tear at an interlocking set of laws and policies intended to prevent exported U.S. weapons from falling into unintended hands.
The announced changes reflect the latest round in a long policy conversation about which U.S.-made weapons can be sold abroad, to whom, and under what conditions. They are the last piece of an initiative launched some 10 years ago, originally intended as a complete overhaul of the U.S. arms export control regime. The goal of comprehensive reform now seems unattainable, so regulators have focused attention on simply sorting military items into two piles – items that have clear military value (“defense articles” included on the U.S. Munitions List) and dual use items that can be regulated via the Commerce Control List.
The process of reviewing military articles and deciding which items belong on which list chugged along for several years with relatively little controversy, mainly because until now, transfers from the Munitions List to the Commerce List involved items like joysticks, rheostats, and rescue boats, along with various parts and components.
This set of regulatory changes is different, for several reasons. To begin, this is the first and only time in the entire process that regulators have sought to remove a lethal weapon from the U.S. Munitions List. The plan is to re-classify semi-automatic and non-automatic firearms as items “no longer warranting control on the Munitions List,” and transfer them over to the Commerce List where the licensing process will be streamlined and a single license can cover multiple transactions.
The weapons in question include semi-automatic rifles, pistols (the Glock M007 (Glock 19M) used by U.S. Marines and the Heckler & Koch MK 23 used by U.S. Special Forces), and the M24 Sniper Rifle used by the U.S. Army. In downgrading the classification of these weapons designed for military use, regulators have looked past their lethality. Yet they are just as deadly as their fully automatic cousins. A semi-automatic rifle can be fired 45 times a minute, and non-automatic sniper rifles can shoot with great accuracy over long distances. Putting them on the Commerce List along with joysticks and rheostats legitimizes them as ordinary commercial products instead of marking them for the dangerous weapons they are.
But that is not the end of the story, because the seemingly benign act of recategorizing defense items has far-reaching consequences for the application of federal laws. The defense items are being assigned to control lists that are directly connected to specific regulations, and the regulations in turn tie back to federal law. The placement of an item on a particular control list determines which laws apply. Over the past several decades, Congress has invested its oversight authority on arms sales and other weapons transfers in two central statutes: the Arms Export Control Act and the Foreign Assistance Act. The provisions of these laws, generally speaking, apply to only to defense articles, defined as such by their presence on the U.S. Munitions List. As in a game of Jenga blocks, removing certain firearms from the Munitions List removes their status as defense articles and they are, ipso facto, no longer covered by statutory provisions. The structure of arms export control itself is also thereby weakened.
That structure is worth fighting for. It includes all the laws that require human rights scrutiny of proposed transfers, a multi-step registration and licensing procedure for commercial exporters that provides several opportunities to detect irregular aspects of an application, a 30-day Congressional notice of sizable sales, tough controls on brokering, and limitations on the way that weapons can be used and to whom they can be transferred. These various statutory controls are tied together in an elaborate legislative architecture that American officials have touted to other countries as the gold standard of arms export policy for small arms and light weapons.
While the U.S. military may not derive great advantage from most of these weapons, they still threaten the lives and welfare of many people around the world. The prevalence of armed extremists and insurgents who depend on weapons slated for transfer makes the military utility and capability of these weapons as relevant as ever. Due to their size and long shelf life, firearms are easily diverted and resold on black markets around the world. The Department of Justice’s January 2019 summary of major U.S. export enforcement cases includes recent firearms smuggling to Brazil, Haiti, Lebanon, Romania, Taiwan and other destinations. Firearms also figure prominently in human rights abuse around the world. In Philippines, for example, operations by armed police and accomplices have claimed thousands of lives, including at least 12 elected mayors. In many perilous human rights situations, the weapons slated for transfer to the Commerce Control List are every bit as threatening as fully automatic firearms.
It is in the interest of the U.S. and American citizens to keep close tabs on these weapons. Indeed, it is for that very reason that the same weapons being proposed for removal from the U.S. Munitions List are expected to remain on the U.S. Munitions Import List, which tightly controls their transport into the U.S. from other countries.
Congress doesn’t have to surrender its authority to oversee the export of these weapons. There is still time for effective action, and the National Defense Authorization Act currently in conference committee offers one expeditious pathway to ensure these weapons remain on the munitions list where they belong. But legislators must act soon, because the clock is ticking.