In FOIA Response From The ATF: No Bumpstocks Used In Any Crime To Date, I conveyed an ATF response to a FOIA request.  This request was made on behalf of Len Savage, and Len sends me this initial letter making the request.

Obviously, they had trouble getting anything out of the ATF.  Len also sent some other email exchanges between him and the ATF which I will eventually post.

In the mean time, David Codrea had this to say.

Herschel has some thoughts. [More]

To reiterate, it’s not “us” creating “conspiracy theories”: Mr. Stamboulieh, Mr. Savage and I are simply repeating what the government is saying, and if that results in inferences and conclusions, they are the ones who can clear it all up — and won’t.

I received the Chisolm letter from the principals the other day along with the document that prompted this response. There’s more to say, which I will in a day or so when I finish some other stuff I’m working on first.

The main “spoiler” I’ll give away is that the government attorney is being cute here, and I don’t think the federal judiciary is going to appreciate that.

Stay tuned.

Okay, I’m a bit out of the loop on this and both Len and David know more than I do about what’s going on.  I’ll try to stay in better touch with both of them on this.

I accept David’s observation that the government is trying to be “cute.”  But I’ll throw in that they’re also being very careful.  I’ve worked with FedGov lawyers before, and they don’t like putting documents out containing material false information.  If any licensee of any kind sends information to FedGov that causes them to repeat it in such a manner that the FedGov owns it, e.g., it ends up in the federal register or other archived government documents, they get really pissed and come after you.

They don’t like material false information because for one, it’s illegal to communicate it (either to or on the part of FedGov), and two, it’s unethical.  If it can be demonstrated that the material false information was knowing and intentional, that can mean disbarment (for a lawyer) or even imprisonment.

I’m sure they’re being “cute.”  I am also sure they are being very, very, very careful.

Via reddit/firearms.

The poor guys at reddit are befuddled.  “So the Vegas shooting was a lie? This is confusing me … It confuses the hell out of me, too.”  Others think it was a lazy, cursory search.

Nay.  I say that the DoJ responded this way because, hold your breath and grab your britches, there have been no bump stocks used in any crime to date.

UPDATE: FOIA On Bumpstocks Used In Crimes

David Codrea:

“Codrea also asserts that the bump stock rule violates the Takings Clause because it fails to provide compensation to current bump stock owners who must destroy or abandon their property. Regardless of the merits of Codrea’s takings challenge, however, it does not justify preliminary injunctive relief.”

Just because she says so, and she has all the power.

Where we stand now is unless the D.C. Appeals Court grants the appeal with expedited treatment, on March 26 I and others will become felons if we do not surrender or destroy property previously deemed lawful by the same bureau now saying it’s not.

And the FedGov has filed an opposition to expedite.  Of course.

Good on David for soldiering on and going through what will likely be a losing battle.

Reuters:

A federal judge gave the Trump administration the go-ahead on Monday to ban “bump stocks” – rapid-fire gun attachments used in the deadliest mass shooting in modern U.S. history – in a defeat for firearms rights advocates.

“None of the plaintiffs’ challenges merit preliminary injunctive relief,” Washington-based District Judge Dabney Friedrich wrote in a 64-page ruling.

[ … ]

Friedrich found courts have regularly recognized the ATF’s authority to “interpret and apply the statutes that it administers,” including the definition of a machine gun.

So in other words, because the courts have teamed up with the administrative state to empower themselves even further, it’s okay.  There’s precedent for it.  Congress doesn’t really matter if we give all authority to the administrative state anyway.

I see that David Codrea is already on this.

Judge Friedrich begins with the assertion that “According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the [Las Vegas] gunman used multiple ‘bump stocks’ in the attack, which increased his rate of fire.”  As contrary to most news reports, political claims and public opinion as this may sound, that has never been definitively established, or if it has, that information has not been made public. True, guns were recovered from the scene with bump stocks attached, but, as a Freedom of Information Act response documented, ATF was denied inspection access to weapons at the scene to determine if the ones used had been modified with “machine gun fire-control components or known machine gun conversion devices,” and to this day no report of technical examination has been released.

He further observes, “Who’s still asleep enough to still think this is “just about bump stocks” or still in denial enough to insist that it’s some genius 3D chess maneuver purposely designed to lose in the courts?”

That was my first thought when I read the report from Reuters.  Yea, what about that 3D chess match Trump is playing to make this all fail in court?  I’ve seen that sort of floated by Glenn Reynolds before, who also notes that this is unconstitutional.

I never once thought that Trump wanted anything but a bump stock ban since (contrary to what the Reuters article says) the NRA gave him cover for it.  He believes that gun owners are a monolith represented by the NRA, when in actuality, many if not most of us consider them to be to willing too compromise.

It’s as if Trump doesn’t really know who his base is, or doesn’t understand them, or doesn’t really care, or simply believes he can replace them with another base.

David Codrea writing at Ammoland:

The stock I obtained, signed by inventor Bill Akins and still in its original packaging, was initially approved as “legal,” then was deemed “illegal,” subsequently returned for rework to remove the spring and once more deemed “legal.”  Now it is supposedly illegal again and if I don’t obey the order to rid myself of my twice-confirmed “legal” property, I’ll be branded a felon and subject to life and freedom-destroying punishments. For the record, I have no intention of using it and don’t even own the type of rifle it is made for. I own it, among other reasons, because I consider it a piece of firearms history, because it pleases me to own it, because the gun-grabbers don’t want me to, and because it is my right.

Yes, to all of the above.  But note that the ATF couldn’t possibly care less how much unjustified damage they do to life and property.  It’s their bread and butter.

It’ll be interesting to see where this goes, perhaps to the Supreme Court.

David Codrea:

ATF was “not allowed to physically examine the interior of the weapons” recovered from the Las Vegas shooter’s hotel room, a new Freedom of Information Act production by the Bureau of Alcohol, Tobacco, Firearms and Explosives reveals. The baffling revelation appears on page 335 of a response sent to attorney Stephen Stamboulieh as part of an ongoing production of documents responding to his FOIA request.

[ … ]

“ATF did not disclose that they had not examined the firearms prior to promulgating the rule,” firearms designer and Historic Arms, LLC President Len Savage notes. “And now that the comment period is closed should they go forward with this rule under the Administrative Procedure Act that information can not be used in a court challenge because it was not submitted prior to closing of comments.

“DOJ is manipulating the APA to make sure that information will NOT be used to shoot down the rule,” Savage concludes.

I’m not a lawyer, but the pretext for this entire rule making was the alleged use of bump stocks in the Las Vegas shooting.  The intentional inclusion of material false information in the federal record is felony perjury.  Government agents should be as liable to that fact as any others.

Continuing with a follow-up.

“Today, we filed a lawsuit against the Federal Bureau of Investigation over a Mandalay Bay FOIA [Freedom of Information Act] request that the FBI denied,” Stamboulieh Law, PLLC announced in a Thursday media advisory.

Firearms designer and Historic Arms, LLC President Len Savage is the plaintiff in the complaint that charges “Defendant FBI is unlawfully withholding records requested by Plaintiff pursuant to 5 U.S.C. §552.” As reported by this column in April:

The FBI has responded. They claim they have no way of knowing how many “bump stocks” have been used in crimes and the FOIA law doesn’t require them to be responsive.

Do you see what’s happening here?  Agents of the ATF promulgated the rule on bump stocks.  A different federal agency, the FBI, refused them access to the guns in that Las Vegas hotel room, and now claims that none of this is their responsibility.  The finger always points in the other direction, doesn’t it?

It is said that FBI agents are having to record their conversations with potential criminals because juries don’t believe them any more.

They deserve it.  They’ve asked for everything that’s happening to them.  Secrecy is the enemy of good and honest government.  Truth be told, there are very few things that there is any moral reason for holding back from the American people.  Operations security in a time of war is the only example that comes to mind.

Via David Codrea, this from Stamboulieh Law.

A few days ago (yes, days), I submitted a FOIA to ATF and FBI regarding bumpstocks and the Las Vegas shooting.  Today I received a CD with 777 pages of information, which you can review at the following links:

Volume 1

Volume 2

Volume 3

Volume 4

What shouldn’t even need to be said is that I haven’t had time to slog and crawl through all of this information.  A little reader assistance would be nice.

This is the wisest 17 minutes you’ll spend today.

NECN.com:

Gun owners in Massachusetts are being warned if they own bump stocks, they have two weeks to get rid of them.

The Massachusetts legislature voted last year to ban them and Feb. 1 is the deadline to comply or face criminal charges.

“This is not a joke,” said Jim Wallace, executive director of the Gun Owners Action League. “A violation of this new law is up to life in prison.”

Wallace says many bump stock owners may not be familiar with the new law, and a warning from Massachusetts state officials to gun owners — despite being dated Dec. 18 — only went out Friday, more than a month later.

[ … ]

There are no exceptions.

The collectivists in the great Northeast have threatened bump stock owners with life in prison for owning one.  Do I have readers in Massachusetts?  Do you own a bump stock, and if so, what are you going to do about this?

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.