Center for Biological Diversity trying to use EPA as an end run around 2nd Amendment

On August 3rd, the Center for Biological Diversity (CBD) filed a petition with the Environmental Protection Agency (EPA) to regulate and ban the sale and use of lead ammunition and fishing sinkers citing the Toxic Substance Control Act of 1976 (TSCA) as it's basis. 

The CDB is a known anti-hunting group whose mission is to "secure a future for all species, great and small".  More simply put, they wish to ban the hunting, fishing, or killing of any animal.  In sticking with their mission, they are attacking hunters by waging a war against the tools of the trade.  Instead of going after the guns themselves, they are attempting to find a way around the 2nd amendment by outlawing the munitions used.  With this petition, they are asking the EPA to step in and provide "regulation" of any lead based munitions or accessories.  While not all munitions are lead based, if allowed, it would provide a significant, and detrimental, amount of regulation and oversight by the EPA of our guaranteed right to keep and bear arms and an open door for future infringement.

However, does this petition have merit?  If you do a Google search of the aforementioned petition, you will see many people stating that the TSCA specifically excludes firearms and munitions from the act.  Me being one who likes to know the facts, decided to read the TSCA myself, in order to better prepare myself for argument.   Finding this exclusion was not easy, in that the wording of the TSCA never specifically mentions the words firearm, weapon, munitions, or ammunition.

However, within Section 3, Article B, Line (V),  the TSCA does explicitly exclude:

any article, the sale of which, is subject to the tax imposed by section 4181 of the Internal Revenue Code of 1954 (determined without regard to any exemptions from such tax provided by section 4182 or 4221 or any other provision of such Code)

Section of 4181 of the Internal Revenue Code of 1954 states:

There is hereby imposed upon the sale by the manufacturer, producer, or importer of the following articles a tax equivalent to the specified percent of the price for which so sold:



Firearms (other than pistols and revolvers).

Shells, and cartridges.

So, it was clearly the intent of Congress, when passing the TSCA, to specifically exclude all firearms and ammunition from the act.  IRS, Title 26, Section 4181, is not hard to understand.  There are no other provisions of the code, it specifically, and only, deals with all firearms and munitions.  By providing an exclusion that calls out "any article, the sale of which is, subject to tax imposed by section 4181 of the Internal Revenue Code of 1954"", the act clearly denies regulation of ammunition under the TSCA.

So, the CBD is perfectly within it's rights to bring up a petition to the EPA under this act, but per the law written within the Act, the EPA should have no other recourse than to summarily deny the petition.  HOWEVER, I don't think we can just rely on the EPA following the law.  Within the last two years, we've seen the law circumvented by agencies who decide which laws they will follow/enforce and which ones they won't.  Case in point being the Immigration Control and Enforcement  (ICE) Agency deciding that it will not deport illegal aliens referred to them.  If ICE can decide to ignore federal law and decide for themselves that they will not enforce it, what is to stop an agency such as the EPA (who consistently oversteps their authority) to ignore law (TSCA) and decide that it is within it's right to deny Americans their right to keep and bear arms by over-regulation of the munitions used?  Considering the government's track record on following of law and constitutional authority here of late, I don't think that we can assume that they will stay within their legal authority and not try to circumvent the 2nd amendment by regulatory fiat here.

The EPA has opened the CBD petition up for public comment and I urge each of you to go and express your opinions regarding the possibility of the EPA once again over stepping their authority.  You can reach the comment page here.  Feel free to use the information in this post with in your comments.  If you wish to add additional information, the National Shooting Sports Foundation has some pretty good arguments to include as well (link).

NOTE:  The EPA has until Nov 2nd, 2010 to accept or deny this petition.  How convenient that it must decide the day prior to the November Mid-term elections.  So please, make you voice heard soon and pass this along to all other Americans who will not see their constitutional 2nd amendment rights trampled, in any way!


jess said...

Nicky, Great Job Son keep it uP!

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