Comments On ATF Bump Stock Ban
BY Herschel Smith
6 years, 8 months ago
James Wesley Rawles at Survival Blog has done a simply magnificent job of upbraiding the ATF. It’s an absolute throw-down of blood and gore and broken bones when Rawles gets through with the ATF. If you like seeing the FedGov slapped around, visit Survival Blog. Here is a taste.
My specific objections are as follows. Note: I reserve the right to litigate on any or all of these. Furthermore EACH of the following numbered items are distinct separate objections and must be addressed individually with logical and complete specificity by the BATFE before the proposed rule is put into force:
1.) To declare existing privately owned devices contraband machineguns with no available method of registering them as machineguns constitutes an uncompensated taking.
2.) To declare existing privately owned devices contraband machineguns with no Grandfather Clause flies in the face of many decades of Federal case law, under Federal Jurisprudence. This also constitutes an uncompensated taking.
3.) The proposed redefinition of “machinegun” (per 26 U.S.C. 5845(b)) is vaguely worded. For example: What is meant by “function of the trigger”? Does that mean a trigger pull (only)? Does that mean a trigger release? Does that mean a pull OR release of a trigger? Or does that mean a pull AND release of a trigger? Does a partial pull of a trigger still constitute a function? Or must a pull of a trigger be through its entire arc to a stopping point to constitute a function? Or must a pull of a trigger be through its entire arc to a stopping point and then a release to a reset point to constitute a function? Or does a release of a trigger from a stopping point to a reset point to constitute a function? Or does a release of a trigger from a partially-pulled position to a reset point to constitute a function?
4.) More than a mere interpretation, it REDEFINES, AMPLIFIES and EXPANDS the wording of the NFA-’34 (26 U.S.C. 5845(b)). This is clearly bureaucratic overreach by the Executive Branch. Per the Constitution, only congress can MAKE laws. The executive branch and agencies can only ENFORCE already legislated and duly enacted laws.
5.) How can the BATFE redefine the meaning of the phrase “single function of the trigger” (per 26 U.S.C. 5845(b)) without the consent of congress?
6.) How can the BATFE further restrict the possession of Militia Weapons without a modification or repeal of the 2nd Amendment?
7.) By declaring a previously legal and constitutionally-protected “arm” suddenly “illegal” and “contraband” is a violation of the 2nd Amendment
8.) By declaring a previously legal and constitutionally-protected “arm” suddenly “illegal” and “contraband” and mandating its surrender to authorities would IDENTIFY the owner is thus a violation of the 5th Amendment protection from self-incrimination. It would also violate the 5th Amendment’s “taking” clause.
9.) By declaring a previously legal and constitutionally-protected “arm” suddenly “illegal” and “contraband” and mandating its surrender to authorities would violate the 4th Amendment protection from seizure without due process.
10.) I take exception to this wording: “Because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle”. That is vague.
11.) I take exception to this wording: “…initiate a continuous firing cycle with a single pull of the trigger.” That is grossly vague and violates the plain simple, Black Letter Law and the manifold intent of congress when it enacted NFA-’34 See: 26 U.S.C. 5845(b))
12.) I take exception to this wording: “…these devices convert…” It is not a conversion to the operating mechanism. Rather, it is either an adjunct or a firing technique, or both.
13.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.” By your new definition, then so does holding your your thumb in your belt-loop when firing from the hip!
14.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.” By your new definition, then so does holding the buttstock of a rifle a short distance from your shoulder when firing!
15.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.” By your new definition, then so does holding a rifle loosely at either shoulder level or hip level when firing! See: https://www.youtube.com/watch?v=7RdAhTxyP64
16.) I take exception to this wording: “harnesses the recoil energy of the semiautomatic firearm in a manner that allows the trigger to reset and continue firing without additional physical manipulation of the trigger by the shooter.” The reset IS indeed physical manipulation of the trigger by the shooter because BOTH the shooter’s body (including the trigger finger) and the gun itself (including the trigger itself) are in motion, when under the force of recoil.
17.) I take exception to this wording: “Hence, a semiautomatic firearm to which a bump-stock-type device is attached is able to produce automatic fire with a single pull of the trigger.” It is NOT automatic fire, as defined by congress in NFA-’34.
18.) I take exception to this wording: “Hence, a semiautomatic firearm to which a bump-stock-type device is attached is able to produce automatic fire with a single pull of the trigger.” It is not producing automatic fire. The shooter’s trigger finger is still producing the fire, one shot at a time.
19.) I take exception to this wording: “With limited exceptions, primarily as to government agencies, the GCA makes it unlawful for any person to transfer or possess a machinegun unless it was lawfully possessed prior to the effective date of the statute.” The Hughes Amendment to FOPA restricts only machineguns, not semi-automatics. Only congress can redefine the word “machinegun”.
20.) I take exception to this wording: “Consequently, current possessors of these devices would be required to surrender them, destroy them, or otherwise render them permanently inoperable upon the effective date of the final rule.” To “surrender them, destroy them, or otherwise render them permanently inoperable” would constitute an uncompensated “taking” which is not allowable under Federal jurisprudence.
21.) I take exception to this wording: “The bump-stock-type devices covered by this proposed rule were not in existence prior to the GCA’s effective date, and therefore would fall within the prohibition on machineguns if this Notice of Proposed Rulemaking (NPRM) is implemented.” That is fallacious. Stocks that were spring-loaded or hydraulically buffered (to absorb recoil–but that unintendedly can create a bumpfire condition) did indeed exist and were on the open market before FOPA 1986. For example, Winchester’s Hydra-Coil stock was invented and produced starting in the early 1960s. It was made for variety of guns, including some semi-autos including the Remington Model 58 semiautomatic shotgun and the Remington Model 742 semiautomatic rifle (with a detachable magazine). See: https://www.si.com/vault/1963/09/09/596517/an-inventor-takes-the-kick-out-of-shooting
James goes on through number 42. It’s just a bloodbath, frankly. He’s not a lawyer and clearly much smarter than anyone who works with the DoJ or ATF.
Closer to home, our own Fred Tippens writes the ATF with the following.
“Turning law abiding patriotic Americans, veterans, suburban moms, and men just trying to raise their families into criminals? Really? Why would I give a flying rat’s backside about a country that does this? Why? Why would I have any loyalty to this country if its government simply takes whatever it wants? I’m sure the irony is completely lost on you but are you going to send men with guns to take them? If you’re going to just up and ban things don’t you make the case for us to stockpile weapons and ammo? Do you know the definition of irony? The courts won’t help. The congress won’t help. The executive won’t help. What redress do we have? Why not just redefine and then ban all of the component parts and accessories of the common rifle? Are you going to ban them one at a time and hope that nobody will notice? Is this not tyranny? Do you want war with your own neighbors? Seriously? I’m only writing this so that I know I’ve done my part to avoid civil war. Now do your part, be for liberty…. I don’t want war so it’s your war to start or avoid. Please choose wisely.”
I have yet to come to terms with writing again. They clearly didn’t engage what I wrote earlier and have no intention of engaging my points in the future.
I will point out one more thing about this ban. The GOP establishment is clearly very good at playing the long game. Trump won, but the GOP establishment is burning the place down, not Trump.
There was no logical or necessary reason to pack the Omnibus bill with spending for Planned Parenthood or for the CDC to issue gun control studies. They have cut his support from two main constituencies: [1] right to life, and [2] gun rights.
Trump cannot win again without those two constituencies. I’ve already heard folks in both camps tell me that they won’t vote for Trump again if hell freezes over. Among pro-life workers (I know some) there was great sadness over the monies given to PP.
Thus the GOP has done two things it wanted to do. They’ve got their gun control to run on in the next election without having to vote on it themselves (they are cowards). They got the ATF to do the dishonest work for them. Second, they have ensured that Trump is a one-term president.
As I said, it is the GOP establishment and not Trump who is burning the place down.
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On April 6, 2018 at 2:34 am, DAN III said:
ALCON,
Excellent synopsis of the illegalities fedgov would enter into with bumpstock banning. However, when has the Rule of Law ever stopped the scoundrels of local/state/fedgov from doing anything “illegal” ?
If the scum of .gov issue a diktat then der untermenschen must comply and obey. TPTB will then use their armed & badged thugs of law ENFORCE-ment to attack the same citizens who pay their bloated salaries and lucrative pensions.
While Mr. Rawles alludes to court action against potential, fedgov illegal diktats, he like every lawsuit fanatic, fails to mention the unbelievable monetary costs to litigate fedgov criminality(ies). Besides, would Mr. Rawles take his chances before the black-robed communists of the 9th Circuit Court ? Methinks not.
The scoundrels one calls “government” do not live by the law. They MAKE the law regardless of how lawful their diktats are or are not. The common man must then resort to challenging these scoundrels before a court consisting of black-robed employees paid by the same folks the litigation is directed at. Mr. Rawles or you or I, do not have enough money and time to fight the scum of government in a fedgov courtroom.
19 April 1775, the anniversary of “The shot heard ’round the world” will be upon us in a matter of days. Have we not learned from the actions at Concord Bridge and on Lexington Green that day ? Sometimes, violence IS the answer.
On April 6, 2018 at 8:20 am, Fred said:
When a government no longer provides rule of law, it’s usefulness to the people has ended. It has no value-add as they say in the business world. What do 300 million people do with a handful tyrants that serve themselves? We may well find out.
On April 6, 2018 at 9:39 am, H said:
You left out the anti-illegal alien camp, which your reporting on is the very best when it comes to the military on the border, but do you accord Trump no agency? He could have vetoed that omnibus bill. During the ensuing “government shutdown”, he could have taken his case to the people, includes these components of the base, ditto if the veto was overridden. He’s decided making peace with the GOPe is more important than his campaign promises, and will as you note likely pay the price in 2020.
Note also his unforced public errors on gun control, the GOPe didn’t make him say things like “Take the guns first” on live video. Then we get to his independent actions, Tweeting against bump stocks and ordering this change, having his spokespeople say he’s not pushing to raise the age of long gun purchases to 21 for now because he doesn’t have the votes in the Congress, etc. He’s on his own comprehensively betrayed gun owners/voters, long before the CDC and FixNICS betrayals in the omnibus.
On April 6, 2018 at 10:19 am, Herschel Smith said:
@H,
There is a veritable army of veterans who, after having fought the wars of choice of the pit vipers in D.C., came home and were diagnosed PTSD, and who now have been reported by the VA to the NCIS as prohibited gun buyers. Putting a single mark on form 4473 makes them an immediate felon.
To all veterans – they did that to you. D.C. did that, and Trump signed it into law.
On April 6, 2018 at 11:33 am, H said:
Herschel: The GOA puts the number at 267,000, and also as I recall you know and have reported on in detail, this includes vets who at any time assigned someone else to take care of their finances, which I imagine would be common if there were laid up in a hospital recovering from war wounds.
But this started with Clinton, his loathing of the military knows no bounds (guns owners too, of course), Bush 43 didn’t stop it as his wars created this “veritable army”, and of course neither did Obama. Trump and the Congress did zap a regulation that would have added Social Security recipients to this scheme, but I haven’t heard of Trump signing anything into law … ah, is this something FixNICS did, to make them into instant felons?
On April 6, 2018 at 11:51 am, Herschel Smith said:
@H,
Yes. And it created punishments and penalties for agencies who do not do the reporting on time and comprehensively.
On April 6, 2018 at 12:42 pm, Bill Robbins said:
Yes, indeed, it is the GOP (and more specifically, the RNC) that is “burning the place down.” They are constitutionally incapable (not just the document, but the inborn pre-disposition) of grasping the inherenst weakness in their “go-along to get-along” position. They are selling-out their core constituency and renouncing their historical strength, which has been the adherence to the very same principles upon which this country was founded.
On April 6, 2018 at 1:10 pm, H said:
Herschel: I’ve just now looked at the omnibus bill, searched for 4473 as well as NICS, read the FixNICS section except for skimming when it starts talking about grants, and I don’t see anything that looks like it could be “Putting a single mark on form 4473 makes them an immediate felon.” It’s all about increasing the reporting to NICS, as advertised.
On April 6, 2018 at 1:19 pm, Herschel Smith said:
@H,
Lying on form 4473 is a felony. It always has been. All veterans need to know that if they have been diagnosed at any time as PTSD, they have now been reported (or will soon be reported) to the NCIS. That requirement was put in place by Obama’s admin, but the various agencies (and DoD) were late, inept and recalcitrant and often (and mostly) didn’t do that.
Now they’ll do it.
On April 6, 2018 at 2:47 pm, SemperFido said:
The people who have given up on the President because of the spending resolution should wait and see if the monies congress tried earmarking in it actually are used for those purposes, or are shifted to other priorities. POTUS is not bound to follow a resolution to the letter. That is why the previous administration loved the funding resolutions.
On April 6, 2018 at 5:10 pm, Herschel Smith said:
@SemperFido,
I assume you’re part of the “Trump is playing 3D chess” crowd. That’s okay. We’re not on different sides, we just see Trump differently.
So here’s another perspective. The Dickey amendment didn’t need “clarification,” although that’s the way it was all couched. It was crystal clear as it was. It prohibited funds from being spent pumping out gun “studies.”
As it is now under the Omnibus bill, if the CDC has ANY FUNDS AT ALL, they can choose to spend some of them pumping out gun control crap. Undoing that would require Congress to pass yet another Dickey amendment, which they won’t do. Watch the CDC in the coming months.
Furthermore, the bump stock ban is something that didn’t even occur under the Obama administration. With the exception of F&F, Trump’s actions are even more anti-2A than Obama, and they are practically irreversible. They all have nothing whatsoever to do with whether Trump decides to spend money on them.
Next up, PP funding. I suppose that could be discretionary, but we’ll see, won’t we. My bet is that money will be spent for PP. Either way, the right to life folks are disheartened and bitter, regardless of your alleged 3D chess match (which I doubt exists anyway).
On April 6, 2018 at 5:28 pm, Longbow said:
quote:
“They got the ATF to do the dishonest work for them.”
That is the agency’s primary purpose. The men working for that agency know their work is unconstitutional and do not care!
That should be all you need to know.
Hey, ATF agents and careerists, want to prove you are “good guys”? Resign! Either way you are defining yourselves.
On April 7, 2018 at 9:31 am, Gryphon said:
Clearly an Obfuscated, Backdoor Ban on all Semi-Auto Firearms.
It will be Entertaining to see how they then try to ‘enforce’ this, as these ‘proposed regulations’ will necessarily beget additional regulations and ‘requirements’.
I Wonder what happens once the Majority of Firearms Owners finally Realize that they are now “Felons” in possession of “Contraband”. Keep in Mind that most Gun Owners are generally Uninvolved, on a Day-to-Day basis, with the existing framework of (non-constitutional) ‘gun laws’. This will Confront the Fudds, Fence-S(h)itters and other Complacent individuals with the possibility of being Randomly (or Not) Selected for Arrest and Persecution as Felons.
It will be Interesting to see just how Quickly (((they))) move to Enforce this stuff, it will be an Indication of how Close (((they))) think We the People are to an Open Revolt against the feral government.
On April 7, 2018 at 4:17 pm, Albert Johnson said:
Two points-
First-attention to detail. Rule of law is a top down government (example-Afghanistan) no we the people involved (communism), originated by Albert Venn Dicey, Brit follower of Karl Marx, circa 1917. Government has all the say, people have no say!
VS- Rule of Constitutional Law. Bottom up government. Of the people, by the people, for the people. We the people have all the say. Current, or I should say- past Constitutional U.S. government.
2nd point- irrelevant under Rule of Law, totally relevant under Rule of Constitutional Law.
BATF personnel must take the oath to support and defend the constitution, from all enemies, foreign and domestic. If any of them violate any portion of the constitution, they are actually/technically operating outside the scope of their employment, and have no legal, or law enforcement standing. All U.S. law enforcement have legal histories of getting hammered legally for violating the constitution, or operating outside scope- except the BATF, who are constantly protected by the democ rats, in order to protect their voter base (reference fast and furious).
On April 8, 2018 at 7:28 pm, Fred said:
“I have yet to come to terms with writing again.”
This has been bugging me since I didn’t say anything the first time I read it. Sir, you know why we need to do it. So we can look our children and grandchildren in the eye and tell them we tried but that we’re left no choice..So that they know that we are doing the right thing when we finally have to tell them; “Get you to you your guns! Aim true, and may the LORD be with us this day.”
That’s why.
On April 9, 2018 at 5:50 am, Marshall said:
Herschel,
I did a rough assessment of the pro vs con comments on the proposed Bump Stock ban. My estimate is ~50:1 against. But as you say, the fix is in and it doesn’t matter what we say. However, the ATF may have a better idea what they are up against as regards to non-compliance. Things will likely not improve until some 4th generation warfare has been employed. It is clear that no one in our government currently fears the people based on their actions. But that could change quickly after these unconstitutional rules start kicking in. Our leaders need to do a lot deeper reflection on the personal costs of crapping on us.
Marshall