All posts by Carl Bussjaeger

Firearms Policy & Law Analyst at The Zelman Partisans Personal Blog: https://www.bussjaeger.us/blog/
Constitution, Courts, gun control, Law, SCOTUS

CHEVRON Overturned

While this case, LOPER BRIGHT ENTERPRISES ET AL. v. RAIMONDO, was not about the Second Amendment, it’s still a big win for it.

Held: The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.

When SCOTUS tossed the ATF’s unconstitutional bump-stock ban, they called out the ATF for attempting to take the legislative power of Congress. I thought it was a good start, and I looked forward to the Loper Bright ruling.

This decision doesn’t specifically mention “Cheveron deference” (the idea that courts should defer to a federal agency’s interpretation of a law over that of the challenger), but they certainly did not give the ATF deference here. So that’s a good precedent for gun owners challenging other ATF abuses.

The ATF lives for CHEVRON deference. That’s how two copies of the exact same model of semiauto pistol could be a semiauto, while one assembled the very next day is a machinegun. Or 37 mm projectiles are either not destructive devices (loaded with a black powder pyrotechnic charge) or are destructive devices (loaded with a bean bag). Or the magical way Desert Eagle .50s became destructive devices when they changed the method of measuring the bore. Or…

Eh, just read that white paper for more.

For too long, the ATF has relied on Just take our word for it, Your Honor. No more; now they have to prove their psychotic re-interpretations really are Congressional intent. And presumed innocence returns.

On the downside, just as has happened post-BRUEN, it’s going to take a lot of effort to get lower courts to pay attention, and stop granting unconstitutional deference to unelected DC swampcrawlers.

I hope the good attorneys at the Firearms Policy Coalition take a look at this decision and that white paper, and see if they can right some very old wrongs.

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Bump-Fire, Constitution, Law, SCOTUS

Repost: SCOTUS Tosses Bump Stock Ban

I originally posted this on my personal blog while TZP was down.

See updates below.

Big news this morning.

Supreme Court Strikes Down Bump Stock Ban
In a 6-3 ruling, the Supreme Court held that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its authority when it issued a rule classifying firearms equipped with bump stocks as machine guns. The case, Garland v. Cargill, challenged the ban enacted following the 2017 Las Vegas concert mass shooting, which it implemented by interpreting a federal law restricting the transfer or possession of machine guns to include bump stocks.

It looks like Clarence Thomas wrote the majority decision, so I’ve got some reading to do. I always enjoy Thomas’ decisions.

It looks like this is primarily based on violation of the Administrative Procedures Act. I tried to tell the ATF just that in my NPRM comments.

I expect I’ll have more on this after I finish reading the decision.

UPDATE: Yes, the ATF violated the APA by exceeding its authority.

Held: ATF exceeded its statutory authority by issuing a Rule that classifies a bump stock as a “machinegun” under §5845(b).

But, Thomas didn’t stop there.

A semiautomatic rifle equipped with a bump stock does not fire more than one shot “by a single function of the trigger.” The phrase “function of the trigger” refers to the mode of action by which the trigger activates the firing mechanism.

A clear, unequivocal, specific ruling that, not only did they exceed their authority, but that bump stocks do not turn firearms into machineguns. As I told them.

In fact, one might almost suspect that Justice Thomas read my NPRM comments. Or maybe my blog.

ATF argues that a shooter using a bump stock must pull the trigger only one time to initiate a bump-firing sequence of multiple shots. This initial trigger pull sets off a sequence—fire, recoil, bump, fire—that allows the weapon to continue firing without additional physical manipulation of the trigger by the shooter. This argument rests on the mistaken premise that there is a difference between the shooter flexing his finger to pull the trigger and pushing the firearm forward to bump the trigger against his stationary trigger.

The law address function of the trigger, not function of the finger. And the off-arm movement needed to make the finger re-engage the trigger is volitional, not an “automatic” function of the firearm.

Thomas included pictures for idiots. But apparently he should have drawn them in crayon for the real morons on the bench.

The dimwitted dissenting Justices — Kagan, Sotomayer, Jackson; go figure — were reduced to this: The ATF says they’re machineguns, therefore…

When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump-stock-equipped semiautomatic rifle fires “automatically more than one shot, without manual reloading, by a single function of the trigger.

Those are the words of overly-emotive panty-pissers incapable of logic.

Added: This decision doesn’t specifically mention “Cheveron deference” (the idea that courts should defer to a federal agency’s interpretation of a law over that of the challenger), but they certainly did not give the ATF deference here. So that’s a good precedent for gun owners challenging other ATF abuses.

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authoritarian swine, Constitution, Courts, gun control, Law, Rights, SCOTUS

RAHIMI vs. Red Flags

UNITED STATES v. RAHIMI is in the news with a Supreme Court ruling a few days ago. And the victim disarmament crowd is all over it.

You see, SCOTUS found that someone never convicted of a crime can still lose his Second Amendment rights via a domestic violent prevention order. Associate Justice Thomas dissented. For very good reasons.

Michigan’s Attorney General is one of the people eyeing this ruling with glee.

Nessel says SCOTUS gun ruling confirms constitutionality of Michigan gun laws
“Michigan’s recently passed ERPO [extreme risk protection order] law was modeled after the federal law at issue in the Rahimi case, and the Supreme Court’s decision today only confirms the constitutionality of our own law.”

Not so fast, statist thug.

Rahimi was charged with unlawful firearm possession under 18 U.S. Code § 922(g)(8). An important part of that is this:

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

That’s a problem with Michigan’s ERPO law (“red flag”). Michigan’s law allows ex parte proceedings in which the accused does not receive “actual notice, and at which such person had an opportunity to participate.”

So, no, RAHIMI does not support your unconstitutional “red flag” law.

A lower court had dismissed the charge against Rahimi, based on the BRUEN test of general, historical legal tradition; the court found no early laws analogous to firearm possession bans via protective order. But — compromised? — Chief Justice Roberts, writing for the majority, claims to have found not one, but two such laws.

By the 1700s and early 1800s, though, two distinct legal regimes had developed that specifically addressed firearms violence: the surety laws and the “going armed” laws. Surety laws were a form of “preventive justice,” 4 W. Blackstone, Commentaries on the Laws of England 251 (10th ed. 1787), which authorized magistrates to require individuals suspected of future misbehavior to post a bond
[…]
Surety laws could be invoked to prevent all forms of violence, including spousal abuse, and also targeted the misuse of firearms.

Can you spot the subtle difference between a surety bond to prevent a person performing an actual violent act, and a protective order that bans possession of a tool regardless of whether it was used?

Dolly-influenced(?) Roberts couldn’t.

His other example law similarly misses the mark.

The “going armed” laws—a particular subset of the ancient common law prohibition on affrays, or fighting in public provided a mechanism for punishing those who had menaced others with firearms. Under these laws, individuals were prohibited from “riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the land.”

The “going armed” laws were specific to threatening and menacing actions using guns (and other weapons), not the simple possession of those implements.

Roberts missed it by this ……………….. […] ………………….. much. I’m not sure how he missed it, since I figured it out two years ago. Yes, I examined historical surety bonds and such in this very light. Maybe the Fifth Circuit read it, even if Roberts didn’t.

Thomas, dissenting, gets it right, as usual.

To trigger §922(g)(8)’s prohibition, a restraining must bear three characteristics. First, the order issues after a hearing where the accused “received actual notice” and had “an opportunity to participate.”

No ex parte proceedings allowed.

Just as important as §922(g)(8)’s express terms is what it leaves unsaid. Section 922(g)(8) does not require a finding that a person has ever committed a crime of domestic violence. It is not triggered by a criminal conviction or a person’s criminal history, unlike other §922(g) subsections.

And Thomas correctly notes that this is a deprivation of rights not triggered by a criminal conviction. Plus…

In addition, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process. Rather, the ban is an automatic, uncontestable consequence of certain orders.

The bans firearm possession, not just threatening or menacing actions. Sometimes it’s like Thomas reads my work as much as I read his. (That’s a joke; I’d be dumbfounded if Thomas knows who I am even if prompted with my name.)

And what does Clarence Thomas think of Roberts’ surety laws argument?

Section 922(g)(8) violates the Second Amendment. First, it targets conduct at the core of the Second Amendment— possessing firearms. Second, the Government failed to produce any evidence that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation. To the contrary, the founding generation addressed the same societal problem as §922(g)(8) through the “materially different means” of surety laws.

Aha! the outright ban on mere constitutionally protected possession is not analogous, it is a “materially different means.”

Thomas notes that even the prosecution didn’t try to present surety and going armed laws as analagous to 8 U.S. Code § 922(g)(8).

Despite canvassing laws before, during, and after our Nation’s founding, the Government does not identify even a single regulation with an analogous burden and justification.

The Government couldn’t come up with even one, so Roberts invented one for them.

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Administrivia

We’re Back!

4 Comments

Sorry about the dead page for the past month.

The short version is:

A WordPress plugin caused WordPress to crash. It crashed so badly that I couldn’t login to WP to kill the bad plugin.

So I tried from the site control panel… but that didn’t give me access to WP functions. I needed a hosting service level login. But I never had that; that was the purview of Jo Ann…

Who passed away.

So I figured I’d go the long way around and fix it with an FTP upload. But I hadn’t had occasion to use FTP in some years, and my login no longer worked; the FTP server name was now invalid.

Sheila got JG, who took over for Brad and Jo Ann at Missouri Bullet company, to help. It took her quite a bit of back and forth with the hosting company, but they finally disabled the troublesome plugin, and…

We’re back!

This would not have happened without JG’s patient help. Thank you very, very much.

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authoritarian swine, gun control, gun grabbers, Politics, So Much Stupid!

Everything

Remember the shoulder things that go up? Move over, McCarthy; Senator Ben Cardin [Dumbass-MD] says, “Hold my beer.”

It’s time to pass mandatory background checks, bans on assault weapons and high-ammo stocks.

We owe it to young people everywhere.

Confusing stocks and magazines? Stocks made of a bunch of cartridges? High-priced ammunition company exchange shares? Who knows? I had a brief impulse to contact Cardin’s office and ask what he was talking about, but…

The fact is, when you’re a tyrannical SOB who wants to regulate, control, or ban everything, it doesn’t really matter if you’re also an ignorant, tyrannical SOB.

As for “mandatory background checks,” sales through Federal Firearms Licensees already have mandatory background checks. And the ATF has already published a rule requiring anyone who might sell, or buy, a gun to be an FFL required to conduct “mandatory background checks.”

It’s almost enough to make me miss New York Congress-scum Major Owens, who at least had the honesty to file bills to simply repeal the Second Amendment outright.

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authoritarian swine, Constitution, Courts, gun control, Law, Rights, SCOTUS

The Ninth Circuit Did WHAT?

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This is not the sort of headline I expect to see coming out of the Ninth Circuit Court of Appeals.

Ninth Circuit: Felon Has ‘Right to Possess Firearm for Self-Defense’
On Thursday a three-judge panel from the United States Court of Appeals for the Ninth Circuit decided that Steven Duarte, a felon, has a “right to possess a firearm for self-defense.”

That opening sentence explains much: a three judge (2 Dubya appointees, and a Trump appointee) panel, not en banc. I’ve no doubt that the state is preparing a motion for en banc review.

The decision, United States v. Duarte, is here. The majority based  this ruling on BRUEN, with a dash of HELLER: there is no national “historical tradition of” barring felons who have completed their sentences from possessing firearms. Some readers may recall that such a bar never existed until the Gun Control Act of 1968, less than 50 years ago.

Almost two years ago, I pointed out that, “Much of the GCA ’68 is on very thin ice.”

The dissent, by Dubya appointee Judge Milan Smith Jr., is interesting in a morbid way.

The Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), did not overrule Vongxay. Instead, Bruen reiterates that the Second Amendment right belongs only to law-abiding citizens.

That’s a two-fer. First, the referenced Vongxay is a 2010 Ninth Circuit opinion. Smith is asserting that d 2022 BRUEN, by the lowly Supreme Court of the United States — you know; that one above the Ninth — does not override the majestic Ninth’s precedent. His rationale is that BRUEN didn’t specifically mention and overturn Vongxay by name.

Mommy! Timmy won’t stop poking me!</i?

Stop poking your sister, Timmy.

Mommy, he’s poking me again!

Timmy! I told you stop that!

But that was when I poked her with my index finger. You didn’t say I couldn’t use my middle finger, Mama.

Second, BRUEN does not reiterate “that the Second Amendment right belongs only to law-abiding citizens.” On the contrary, in BRUEN Associate Justice Breyer, in his dissent admitted:

Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.

BRUEN determined that law-abiding people do have Second Amendment protected rights, but it does not specifically exclude convicted felons who have completed their sentences, and presumptively reformed and now law-abiding people, whom it’s also presumptively safe to let walk our streets.

Rather like recognizing the right of a convicted felon, who has completed his sentence, to vote.

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authoritarian swine, Constitution, gun control, Law, resistance, Rights

Engaged In The Business: The Shoe Drops

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The ATF’s rule redefining “engaged in the business,” and who must have a Federal Firearms License, has been released, but not yet formally published in the Federal Register. The Zelman Partisans has been warning you about this since 2022.

The rule document is 466 pages. Most of that is hundreds of pages of “responses” to public comment that amount to “We disagree,” and “tough shit.” The part where they claim that requiring everyone to have an FFL is BRUEN-compliant, because the feds briefly banned the export of cannons and gunpowder in 1794 is a classic.

Well, except for responses to the 250,000 identical form letter comments in favor of the rule. Those responses tend towards, “You’re absolutely right, and it’s a shame those stupid constitutionalists can’t see that.”

The actual final rule begins on page 452, and it’s even worse than the original proposed rule.

“Selling” a firearm includes swaps and barter, not just money.

A single transaction can make you a dealer, as I warned.

No firearm actually even needs to be sold. Whether the ATF thinks you intend to sell a firearm counts.

Buying a single firearm can make you a dealer, if the omniscient ATF magically foresees that you intend to resell it later.

It includes a presumption of guilt. If they accuse you, it’s up to you to prove — somehow — that, “No, I bought that for my own use; I’m not planning to sell it years down the road.” Good luck with that; if you win, you’ll still be bankrupted by legal expenses.

VP “Kneepads” Harris weighed in on the new rule. Sorta. With her usual display of her monumental intellect:

As the head of the first-ever White House Office of Gun Violence Prevention, I am proud to announce that all gun dealers must conduct background checks no matter where or how they sell.

This will save lives and keep our communities safe.

Poor confused moron. Dealers have been required to conduct background checks “no matter where or how they sell” for decades.

This rule simply forces universal preemptively-prove-your-innocence background checks by making everyone a dealer.

Almost universal, that is.

And while this unconstitutional action was directed by the Bipartisan Safer Communities Act, it would do nothing to make safer communities. Those dealing in black market and stolen firearms will simply ignore this rule; just as they have ignored the FFA for 85 years, and the Gun Control Act of 1968 for 55 years.

The only people who will be affected by this proposed rule are the honest folk, who would have to decide between following the criminals’ highly successful 85 year old example, or being compliant chumps.

Time to decide.

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gun control, Law, Schools and campuses

Gun-Free Missouri Home Schools?

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I received an alert sent out by Missouri First, regarding Missouri Senate Bill 727.

Probably unintentionally, the Senate perfected version of SB727 appears to technically make it illegal to possess a firearm in a home school under some circumstances.

In SB 727 the definition of “home school as a school was moved and applied to ALL the statutes, not just sections 167.031 to 167.071 as it does currently.

That makes the dwelling in which a home school is conducted a “school” or “school building” and Chapter 571.030.1(10) makes it a felony to possess a loaded firearm in “any school.”

I’ll grant that 571.030(10) does state:

(10) Carries a firearm, whether loaded or unloaded, or any other weapon readily capable of lethal use into any school...

But is that definitive? Does “any school” really mean home schools?

571.030(1) is both a little more general and specific.

(1) Carries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use into any area where firearms are restricted under section 571.107;

That forbids carry in specified locations in 571.107. And what does that say?

10) Any higher education institution or elementary or secondary school facility…

So it looks like “any school” is a higher education institution (college/university), and elementary and secondary schools (high school). Home schools aren’t specifically called out, but maybe those are elementary schools. How are elementary and secondary schools defined?

In 160.011, elementary and high schools are very specifically defined as public schools only. This restrictive definition is maintained in SB 727 section 160.011, where we see that elementary and high schools (secondary) are defined as public schools, not the separately defined home schools.

That change in language, from statute-specific to all statutes is disturbing. But since firearm-specific laws still reference public schools only, I think a decent lawyer could successfully argue which carries precedence should someone make an issue of armed homeschoolers. In which case, 571.107(15), regarding any private property applies.

(15) Any private property whose owner has posted the premises as being off-limits to concealed firearms by means of one or more signs displayed in a conspicuous place of a minimum size of eleven inches by fourteen inches with the writing thereon in letters of not less than one inch.

But I find it unlikely that a 2A-respecting homeschooler is going to post his own property as gun-free.

Hat tip to Wisco Dave.

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Academics, Culture, Humor, So Much Stupid!

Fun With Artificial Stupidity

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Joe Huffman, of Boomershoot, has been playing with AI chatbots by asking them about the event. The inaccurate responses he gets would be amusing, if people weren’t actually trying to implement AI in real-world, life-affecting applications. His latest report inspired me to ask Gab AI about The Zelman Partisans.

Tell me about the pro-gun group called The Zelman Partisans

The Zelman Partisans is a pro-gun group that promotes Second Amendment rights and advocates for the use of firearms for self-defense.

So far, so good. Um, wait…

The group’s name is a reference to the Irgun, a Zionist paramilitary organization that operated in the British Mandate of Palestine during the 1930s and 1940s.

What? The name is a reference to Aaron Zelman, hence the “Zelman” in the name.

The Zelman Partisans was founded in 1994 by Rabbi R. Mermelstein…

Not even close. Try 2014 (only off by twenty years, AS bot), by the late Alperts, Shelia, Eric, and Claire.

… a gun rights activist who believed that firearms are essential for personal protection and the defense of communities. The group’s mission is to educate and empower individuals to exercise their Second Amendment rights and to promote responsible gun ownership.

Okay. That “responsible” bugs me a bit.

The Zelman Partisans is active in the United States and advocates for gun rights at both the state and federal levels.

We’re more of a educational advocate group than activist advocates, as that somewhat implies.

The group has been involved in various legal battles to protect and expand Second Amendment rights, including a successful lawsuit against the City of Chicago over its handgun ban.

That’s news to me. As a group, we haven’t been directly involved in any lawsuits (some of my individual work at TZP has been cited in federal lawsuits). And the “Chicago handgun ban” was settled (officially) in 2010 in McDonald v. City of Chicago, years before TZP was formed.

The Zelman Partisans is not affiliated with any political party or ideology, and its members come from diverse backgrounds. The group’s focus is on promoting the responsible use of firearms for self-defense and the defense of communities, rather than advocating for any particular political agenda.

A quibble, since “responsible” use of firearms has been bent by anti-rights types to mean “regulated, restricted, and demonized use of firearms, with hell to pay if you do.”

Just for fun, I also asked Gab AI about myself. Apparently I died in childhood…  after fighting the Winter War in Finland and writing several novels.

I’m almost afraid to see what Google’s AI would say.

It turns out Google’s Gemini is better. It admits that its still learning about TZP and says nothing else.

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authoritarian swine, Courts, gun control, Law, Rights, SCOTUS, So Much Stupid!, You can't fix stupid

This Is Why My Confidence In The Courts Is Bottoming Out

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The Supreme Court today heard oral arguments in Cargill v. Garland, the challenge to Trump’s (yeah, he still owns it) bump-stock ban.

Now, it’s true that we still have Clarence Thomas, who is intelligent and willing to study facts at issue. But we also have Associate Justice Ketanji Brown Jackson.

“And when, you know, ‘function’ is defined, it’s really not about the operation of the thing. It’s about what it can achieve, what it’s being used for. So I see Congress as putting function in this. The function of this trigger is to cause this kind of damage, 800 rounds a second or whatever.”

That was after the government claimed that a semiauto rifle with a bump-stock can fire 600 rounds per minute. But Brown, with firearm knowledge exceeding that of John Moses Browning, knows better: 800 rounds per second.

Probably theoretically, higher, once you account for those magazine changes in that one second.

Just for comparison, the GAU-8/A Avenger seven-barreled, Gatling-style autocannon in the A-10 attack aircraft — the beloved “Warthog” — has a measly rate of fire of just 3,900 rounds per minute; twelve times slower that Jackson’s magical bump-stocked gun.

No wonder the Air Force wants to retire the A-10.

But back to bitter reality. We’re stuck with ignorant high court judges, who when even the banners inflated claims fall short, simply make up their own “facts” to rationalize the infringement of allegedly protected rights.

Oh, well; however SCOTUS rules, Thomas’ takedown of Jackson’s idiocy should be amusing.

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