Archive for the 'BATFE' Category

Addressed to ATF.  Please respond to the following comments, questions and observations concerning the application of the definition of machinegun to “bump” fire stocks and other similar devices.

(1) Regulatory analytical requirements (e.g., cost-benefit and cost-effectiveness analysis) have been established incrementally during the last 40 to 50 years through a series of presidential and congressional initiatives. The current set of requirements includes Executive Order 12866 and Office of Management and Budget (OMB) Circular A-4, the Regulatory Flexibility Act (RFA), and the Unfunded Mandates Reform Act (UMRA).  Please demonstrate and provide compelling reason to believe that the cost-benefit analysis shows that the proposed regulation is in the interests of gun owners in America, business owners in America, and the U.S. government in general.  You are required to supply this cost-benefit analysis for all proposed regulations.

(2) Various firearms experts in America, including commenters at my own web site, www.captainsjournal.com, believe that had a shooter used their firearms by aiming and placing directed fire with good optics, their effectiveness would have been increased (e.g., Charles Whitman and others).  Please demonstrate and provide compelling reason to believe that the proposed regulation in any way effects your alleged desired outcome given the apparent disagreement within the firearms community on the effectiveness, or lack thereof, of the alleged use of bump fire stocks in the Las Vegas shooting.

(3) The legal definition of a machinegun is established law as follows: ” … any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”  Given that bump stocks do not alter function of the trigger to discharge a single round per operation of the trigger, please demonstrate and provide compelling reason to believe that the ATF isn’t fabricating law out of whole cloth, thus usurping the authority of the Legislative Branch of the government, by this proposed regulation.

(4) To date, no empirical evidence has been brought forth showing that a bump stock equipped firearm was actually used in the shooting. The public has only seen pictures of bump stock equipped firearms from the crime scene. No one has claimed that those specific weapons were used in the crime, including and most importantly the LVPD.  Please demonstrate and provide compelling reason to believe that this proposed regulation has any bearing on the mechanics, structures, systems or components, equipment, or devices in use in Las Vegas, which is the alleged basis for this regulation.

(5) To date, the only parties from which we have heard concerning the weapons, devices, fixtures or components allegedly used in the Las Vegas shooting are [obliquely] the LVPD until they were silenced by the FBI, and the FBI themselves.  Given the revelations of untrustworthiness and corruption in the DoJ and FBI over the last few months, demonstrate and provide compelling reason to believe that this is a wise basis for proposed regulation.  Said another way, demonstrate and provide compelling reason to believe that it wouldn’t be a wise idea to formulate a fully independent review and analysis team comprised of members of the public and firearms experts (not including law enforcement) to inform the public concerning those devices used at Las Vegas?  Such an action wouldn’t be without precedent.

(6) Demonstrate and provide compelling reason to believe that regulation of bump fire stocks, which are used for the purpose of bump firing weapons, wouldn’t also have the ludicrous, laughable and preposterous effect of regulating rubber bands and human hips (both of which can also be used to bump fire weapons).  Failure to demonstrate this causes the proposed regulations to fail due to reductio ad absurdum.

(7) Demonstrate and provide compelling reason to believe that given the above point(s), regulation of bump stocks wouldn’t cause a complete failure of confidence in the federal regulatory schema and cause the ATF to become a national laughingstock and disgrace.

(8) Demonstrate and provide compelling reason to believe that the proposed regulation functions for its alleged purpose given that some firearms competitors (e.g., 3-gun competitors) can discharge firearms with a single pull of the trigger virtually as fast as many machine guns.

(9) Demonstrate and provide compelling reason to believe that the proposed regulation won’t become precedent-setting (i.e., the rather than pass laws per the constitutional process, the legislative branch requests reviews by the executive who then takes it upon itself to pass laws via the Federal Register rather than the constitutional process).

(10) Demonstrate and provide compelling reason to believe that working on the proposed regulation is a wise use of ATF time and resources compared to its other duties, or in other words, that working on this regulation is a good use of our tax monies and provides tangible and meaningful public benefits.  Please provide the cost-benefit analysis for this judgment for our review.

(11) Demonstrate and provide compelling reason to believe that this proposed regulation won’t effect any other components of firearms intended to improve their function (e.g., well-designed and engineered triggers, improved optics, grips, other types of attachments or devices to stabilize the weapon for the shooter, night vision equipment, slings and bipods, lighter barrel shrouds or other components like the charging handle, more reliable buffer springs, lighter or faster bolt carrier groups [BCG], etc., etc.).  Some professional and semi-professional competitors already shave weight off of the internal components of their guns to assist faster cycling.

David Codrea:

The Department of Justice anticipates issuing a Notice of Proposed Rulemaking (NPRM) that would interpret the statutory definition of “machinegun” in the National Firearms Act of 1934 and Gun Control Act of 1968 to clarify whether certain devices, commonly known as “bump fire” stocks, fall within that definition,” a Tuesday Federal Register notice advises. “Before doing so, the Department and ATF need to gather information and comments from the public and industry regarding the nature and scope of the market for these devices.”

The document comment period ends on January 25, the notice continues, providing ways to send them in either by mail or via a submission form. The notice also provides background information, including a summary of claimed statutory authority as well as the ”justification” for the proposed rule, which unsurprisingly relies heavily on last October’s Las Vegas music festival murders to make the case that such controls are needed.

I knew this and had discussed it, but I’m torn on this.  On the one hand, I need to submit comments.  On the other hand, while I’ve seen ATF responses to my points before (concerning importation of shotguns), I’ve never been given more than cursory, dismissive treatment.  I don’t expect better treatment this time around.

I’ll let readers decide for me.  I need help if I’m going to submit comments.  My readers write better than I do, have more background in legal matters than I do, and can present the case better than I can.  I would actually like to submit comments from TCJ rather than just me.

If you have thoughts on this, whether merely single comments, multiple comments, or an actual outline for a response, please respond either in comments to this post or via email.  I’d rather it be in comments to this post since that will cause others to think about the issue and add to the information here.

As always with the federal bureaucracy, although we may want to call them names and curse at them, that will cause them to throw away our comments.  Keep it civil and make it something that will actually be difficult for them to deal with.

USA Today:

Federal authorities sought to take back guns from thousands of people the background check system should have blocked from buying weapons because they had criminal records, mental health issues or other problems that would disqualify them.

A USA TODAY review found that the FBI issued more than 4,000 requests last year for agents from the Bureau of Alcohol Tobacco Firearms and Explosives to retrieve guns from prohibited buyers.

It’s the largest number of such retrieval requests in 10 years, according to FBI records – an especially striking statistic after revelations that a breakdown in the background check system allowed a troubled Air Force veteran to buy a rifle later used to kill 26 worshipers at a Texas church last month.

The FBI’s National Instant Criminal Background Check System (NICS) vets millions of gun purchase transactions every year. But the thousands of gun seizure requests highlight persistent problems in a system where analysts must complete background checks within three days of the proposed purchase. If the background check is not complete within the 72-hour time limit, federal law allows the sale to go forward. ATF agents are asked to take back the guns if the FBI later finds these sales should have been denied.

In addition to the public safety risks, the ATF agents tasked with retrievingthe banned weapons from unauthorized gun owners across the country are exposed to potentially dangerous confrontations.

“These are people who shouldn’t have weapons in the first place, and it just takes one to do something that could have tragic consequences,” said David Chipman, a former ATF official who helped oversee the firearm retrieval program. “You don’t want ATF to stand for ‘after the fact.'”

No, I don’t.  I’d rather the ATF didn’t exist at all since they are an unconstitutional entity based on unconstitutional laws and regulations.

There.  Fixed it.

Dave Hardy at Of Arms and the Law links a very in depth and insightful commentary and analysis of the National Firearms Act (NFA).  Dave comments concerning SBRs.

In 1934, they were treated as gangster weapons, although I don’t ever recall hearing of gangsters using them. They tended to have their fights at pistol or shotgun range, not at 100+ yards. Originally the minimum barrel length was 18″; then the government discovered it had sold millions of M-1 carbines as surplus, and they had 16.5″ barrels. So the minimum length was reduced to 16″. Which did a nice job of showing how arbitrary it was.

If you follow the link you’ll get to the scholarly paper (PDF), and I highly recommend it to you.  It would be nice if my readers would tackle this document and make some salient points.  There are a lot of observations I could make but just don’t have the time or energy.

One thing I will observe is that on PDF pages 500 and 521, it’s noted that a “pistol” is defined as follows.

[A] weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having (a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and (b) a short stock designed to be gripped by one hand and at an angle to and extending below the line of the bore(s).

While some shooting instructors may invoke off-hand or one-handed shooting as a small part of their efforts because of possible hand-to-hand combat situations, reaching for reloads, attempting to keep an attacker from taking the slide out of battery, or other reasons, this is usually what we might call “beyond design basis.”

No instructor in his right mind today would actually teach that it’s appropriate or preferable to shoot a pistol or revolver with a single hand.  That’s how much the science has evolved since passage of the NFA.

It’s an old, antiquated, worthless, useless, tangled, self-contradictory, laughable abomination, and the more the Congress and Senate (and by extension, the ATF) hang on to this ridiculous document, the more absurd they look.

As usual, reader remarks concerning the study are welcome.

Codrea:

There are plenty of smears against Barbeau, notably by those who make a lucrative living off ad hominem insinuations like the Southern Poverty Law Center. There’s also no shortage of gun owners ostensibly “on our side” who will argue this isn’t the right case to back, and they’ll cite Barbeau’s own words and actions, being exploited by SPLC and others, to throw him under the bus.

It’s interesting to note that a year-and-a-half after his arrest, Barbeau remains behind bars awaiting trial on a short barrel rifle possession charge.

A speedy trial.  I seemed to remember something about that.  He’s incarcerated because of things other than an SBR.  Hey, I say this is as good a case to take as any.  And I say we take that SBR and cram it up fedgov ass.

SB-Tactical:

SB Tactical™, inventors and manufacturers of the Pistol Stabilizing Brace®, is excited to announce that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) has issued SB Tactical a reversal letter containing a sensible clarification of the Bureau’s position on the lawful use of SB Tactical braces.

The new clarification of opinion letter states, “an NFA firearm has not necessarily been made when the device is not reconfigured for use as a shoulder stock – even if the attached firearm happens to be fired from the shoulder. To the extent that the January 2015 Open Letter implied or has been construed to hold that incidental, sporadic, or situational “use” of an arm-brace (in its original approved configuration) equipped firearm from a firing position at or near the shoulder was sufficient to constitute “redesign,” such interpretations are incorrect and not consistent with ATF’s interpretation of the statute or the manner in which it has historically been enforced.”

SB Tactical, along with the law offices of Mark Barnes & Associates, have worked tirelessly for more than two years to correct what they believed to be an inaccurate interpretation of “redesign,” related to the Pistol Stabilizing Brace. “It has always been our belief that the addition of our Pistol Stabilizing Brace benefits shooters, both disabled and able-bodied, and that neither strapping it to your arm nor shouldering a brace equipped pistol would constitute ‘redesign’ of a pistol to a NFA firearm”, said Alex Bosco, inventor, founder and CEO of SB Tactical.

Good.  As I’ve observed before, when your life or the life of a loved ones is in danger, how you choose to present and deploy your weapons should be up to you depending upon the circumstances and your need of the moment.

Furthermore, this is good news with regards to range time.  No one at a range will be able to tell you that practice with a firearm like this shouldered to fire is unlawful use of the firearm.  You should train the way you intend to use your weapons, and if one possible use of a particular weapon is to shoulder the end of the buffer tube, then so be it.

The ATF isn’t defending your home, and didn’t take an oath to protect, provide for and honor your spouse.  You did.  No one wants to run afoul of unnecessary and ridiculous rules and needlessly cause trouble in the course of his preparations and training.

David Codrea:

“As a long term bureaucrat, this white paper reads as an application for the ATF director spot,” Weingarten surmises. “The paper fairly screams: I am willing to work with you, and I know how to take direction.”

That tracks with opinions I’ve received from insider and industry sources. It also works to mitigate the threat to the Bureau of having its functions spun off to different agencies.

I must admit to being skeptical of the motivation myself.  Government employees don’t usually work to undermine the scope of their authority.

I’ll also comment on a point David makes about a FOIA request in which he was involved.  Perhaps the FOIA request caught them with their pants down and forces them to consider their failures as an organization.

My experience has been that any entity that thinks it will be embarrassed by what it divulges in response to a FOIA will ignore the FOIA.  If you have massive legal assets like Judicial Watch, you typically can get what you want, albeit with some effort.  But for me, this usually goes badly.  The FOIA framework has no teeth because little people like me have no ability to force them to obey the law.

At any rate, the white paper reads like a job application.  Perhaps it is.  I don’t blame him.  I blame the executive branch of the government for allowing the ATF to get this badly out of control, I blame the Senate for the NFA and GCA, and I blame the people of the U.S. for putting communists in place who would promulgate this kind of legal framework to begin with.

What a sorry situation.

David Codrea:

Lessons learned from one man’s struggle to challenge a gun purchase denial from the National Instant Check System give insights into how difficult it can be for a citizen to clear his name once the government has decided he’s a “prohibited person.” Fortunately, an Anchorage medical professional and “avid gun collector” [name withheld at his request] had the savvy, the wherewithal and the persistence to successfully fight a bureaucratic denial of his right to arms.

David later observes that “He did not submit prints until after the rejection and he got them for his CCW. He wanted additional evidence to challenge the denial. That means the original rejection looks like it was based on confusing him with someone else who was prohibited and whose prints were thus in one of the system they had checked — and when the dr. sent his in, they realized they did not match with the source they had used to reject him.”

Whatever.  There is no excuse for this.  First of all, the perfect solution is to get rid of the entire 4473 and NICS process, along with the ATF.  That way, there is no chance that rights will be denied by the federal government.

But since this is the mess in which we currently live, imagine the worst, most bureaucratic, most intransigent, and least concerned that a government body can be, and that’s what you have here.  I’m frankly amazed that he ever got his rights back.  His persistence served him well.

See folks, this is why we can’t have nice things.

David Codrea gives a rundown of the recent actions by the ATF on the ammunition supply chain.

“ATF was recently asked about the status of nitrocellulose under the Federal explosives laws and regulations,” the Bureau of Alcohol, Tobacco, Firearms and Explosives noted in its… industry newsletter. “‘Nitrocellulose explosive’ is on ATF’s List of Explosive Materials.”

Who did the asking—and what their motives were—was left unsaid.

“ATF has determined that nitrocellulose containing greater than 12.6 percent nitrogen is a high explosive under 27 CFR, Part 555 (nitrocellulose containing 12.6 percent or less nitrogen is generally not an explosive material under Part 555),” the release explained. “Therefore, it must be stored in a type 1 or type 2 magazine.

“We are aware that the US Department of Transportation may assign a nonexplosive classification to nitrocellulose when it has been wetted with water or alcohol,” the advisory acknowledged. “This is based, in part, on the diminished likelihood of explosion in a transportation accident.

“Because the nitrocellulose retains its explosive characteristics when the water or alcohol is removed, the wetted nitrocellulose remains a nitrocellulose explosive, subject to the licensing, safety and security requirements of the Federal explosives regulations,” the post concluded. “However, based upon the diminished likelihood of wetted nitrocellulose exploding, ATF will consider variance requests to store the wetted material under an alternative arrangement.”

David continues with the potential affects of said ruling.

So what’s the impact of ATF coming up with new rules for wetted nitrocellulose?

“Manufacturers and importers of smokeless propellant have relied on ATF private letter rulings issued prior to 2016 stating that nitrocellulose wetted with water not less than 25 percent by mass is not subject to regulation under the federal explosives laws,” the response explained. Their entire operations have been set up “consistent with nitrocellulose not being regulated as an explosive.”

Everything from storage to record-keeping and more would be thrown for a loop. Also impacted would be “contracts to supply smokeless propellant and finished rounds of ammunition to the Department of Defense.”

Read the rest of David’s analysis for some very good questions.  Bob Owens also discussed this.

There were some panicked posts earlier this week in some other firearms-focused sites which claimed the ATF had redefined wetted nitrocellulose as a high explosive, and that this redefinition would dramatically affect the availability and cost of ammunition.

Someone had a question about wetted nitrocellulose, the ATF tried to answer that question in their newsletter, and did so in a manner that drew an unintended and unexpected “the sky is falling!” response.

They’ve now issued an addendum to their newsletter which amounts to, “Dudes, chill.”

There’s a whole lot of snark in Bob’s writeup, and inappropriately so.  I don’t see the post at AllOutdoor.com as a “sky is falling” assessment at all.  The initial ATF answer chose a potential critical path of the logistics chain in the ammunition manufacture process and emplaced an entirely new regulatory scheme on it.  It might have been catastrophic.  The aborted ruling isn’t made up by any writer or commenter.  The ATF said it.  It’s their own words.

As regular readers know, the federal executive is out of control.  The legislature is stocked with demons, pit vipers and gargoyles, and the judiciary has never seen a law or regulation, real or imagined, they didn’t love.  This sounds a lot like something they would promulgate on the gun owning community.

For my part, I think there are a lot of questions that need to be asked.

Why did this come up, and who asked the question?

Who fabricated the response by the ATF, and how far up the chain of command did the approval go?

Wouldn’t something like this be considered rule making and therefore be subject to entry into the federal register, with a comment period and necessary responses, and then codified into the code of federal regulations?

Did the ATF contact and collaborate with the Department of Transportation on this aborted rule making, or did they simply assume that the DOT had no comments and had all the necessary resources to pull off control of this new regulatory scheme?

Did any Department of Justice lawyers evaluate this aborted ruling?

Is there any technical basis whatsoever for the ATF position in the aborted rule making?  Has this been reviewed by a registered professional engineer and is the report he wrote available for public review?  Does the Department of Justice (ATF) have a differing professional opinion (DPO) process like other departments of the federal executive, and is this process available for use by the public like other programs?

Has an economic impact study been performed?

Did anyone in the White House know about this?

This is only the beginning of the questions.  You can safely rely on one thing.  I will greatly increase and enhance the list of questions sent to the federal government if the ATF proposes this as formal rule making.

The reader is invited to fill in the comments with his own questions and observations.

The Trace:

The government takes making gun records difficult to search quite seriously. A Government Accountability Office report released August 1 concluded that in two data systems, the ATF did not always comply with “restrictions prohibiting consolidation or centralization” of records. The GAO, which is entrusted with ensuring that federal agencies follow the law, was essentially chiding the ATF for making it a bit easier for its hundreds of investigators to do their jobs.

Alarmed headlines from conservative publications followed. A Fox News pundit falsely claimed the report found the agency had “a list of every gun owner and every gun owned.”

Congress imposes conflicting directives on the ATF. The agency is required to trace guns, but it must use inefficient procedures and obsolete technology. Lawmakers in effect tell the agency to do a job, but badly.

Investigators scan and save them as digital image files. They are like online piles of paper, or PDFs, arranged by one field only.

Trick question: The system can’t really be considered a database. (There is a reason the ATF uses the phrase “data systems” instead). There is no ability to search the text of a file, and no effort is made to tag files with identifiers that could later be used to sort and search. “We compare it to an electronic card catalog system, where records are digitally imaged, but not optimized for character recognition,” ATF spokesman Corey Ray says.

The only thing better than obsolete technology would be nothing at all – no records, no cards, no PDFs.  Because, “shall not be infringed.”  Besides, one can quite easily turn this into a system capable of OCR.

I say trash all of the records in a gigantic fire, with celebratory partying and great fanfare.