The Firearms Policy Coalition and Cato Institute have filed an amicus brief in Gun Owners of America v. Barr, the GOA’s bump-fire stock case in the 6th Circuit.
Read it. It’s only 17 pages in full, and the brief proper is just 11 pages (the remainder being the standard legal paperwork administrivia).
Yes, read it; but I’m going to distill the basic message for you anyway.
The ATF’s Interpretative Reversal Is Based on Political Expediency, Not Statutory Ambiguity
[…]
What prompted this reversal? The proposed rulemaking reveals that the impetus for this change in position was not an organic review of agency policy. Instead, the change was triggered by public outrage following the October 2017 mass killing in Las Vegas, which likely involved a bump-stock-type device:
[…]
The ATF admits that the rulemaking was commenced “in response” to outside political pressure.
[…]
On February 28, 2018, the president hosted a meeting with members of Congress to discuss school and community safety. […] President Trump interjected that there was no need for legislation because he would deal with bump stocks through executive action:“And I’m going to write that out. Because we can do that with an executive order. I’m going to write the bump stock; essentially, write it out. So you won’t have to worry about bump stock.”
[…]
Reportedly, Justice Department officials told Senate Judiciary Committee staff that the government “would not be able to take [bump stocks] off shelves without new legislation from Congress.”Likewise, the ATF director told police chiefs that his agency “did not currently have
the regulatory power to control sales of bump stocks.”While the Department stated that “no final determination had been made,” President Trump boasted that the “legal papers” to prohibit bump stocks were almost completed. […] [B]efore the rulemaking was announced, President Trump tweeted: “Obama Administration legalized bump stocks. BAD IDEA. As I promised, today the Department of Justice will issue the rule banning BUMP STOCKS with a mandated comment period. We will BAN all devices that turn legal weapons into illegal machine guns.”
Right there, they document that the decision had been made, regardless of the actual rulemaking process or facts, and that it deliberately bypassed legislation. We knew that, of course, but they collated and documented it in incriminating detail.
This is now a test of the court itself, not just ATF or DOJ. Taking the longer view, because I anticipate the 6th Circuit Court of Appeals blowing this off, it is a test of the Supreme Court.
If the ban is upheld, despite flawed regulatory practices (which didn’t really matter, as the process was a Potemkin show to pretend they weren’t actually banning by political fiat), and the grossly improper bypassing of Congress, there is no law.
By and large, honest gun owners try to live by the Constitution and the rule of law. We’ve put up with much over the decades because it was framed as “law,” and we thought we, too, had the courts and law to make our case for freedom. The politicians, bureaucrats, and especially the courts must consider the ramifications of making that impossible.
[Permission to republish this article is granted so long as it is not edited and the author and The Zelman Partisans are credited.]
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You have not only opened a new can of worms, sort of, but you have also made a difficult choice for gun owners now. Do we follow the rules as the government sets them, even though they are illegal, and admittedly so, or do we simply do what we feel the constitution says?
And if we choose the latter, are we willing to accept the consequences of our actions? For example, in Michigan, it is required for me to register any handgun I buy, with my local police department, within 10 days of the purchase. If the laws are no longer worth the paper they are printed on, do I have the fortitude to ignore them, or do I remain cowed like the sheep that many of us are?
Even better, do I create in my basement shop, a suppressor for my .22 caliber pistol, and use it on my own land, assuming I own land, without bothering to consult the BATFE? I don’t know for certain, but I bet I could get quite a bit of sound reduction on my .22 caliber rifle merely by duct taping a lawn mower muffler on the end of it, with some modifications.
I am not even talking about making some kind of fully automatic rifle, which takes much more mechanical ability than the average person possesses. The short barreled shotguns, with the pistol grip on them, would be a great so called riot gun from days of old, without having to cut the barrels off. Just make a shoulder stock and you would be good to go.
The BATFE seems to have over stepped not only their authority, but also the laws of physics, in that a bump stock is not a machine gun, any more than a shoe lace is one, or my thumb and my pants loop. Or just a really well practiced trigger finger and off hand.
I don’t expect that the courts will offer any relief at all, on any level. I would be pleasantly surprised if that did happen. Because there are a million other things that are balanced upon this illegal ruling. And they are only waiting for a Democratically controlled government to make them come tumbling down.
I didn’t open that can.
And you do recall that they did classify that shoestring as a machinegun? Then declassified it. And do read what the DOJ’s “rubberband man” Eric Soskin had to say about those in federal court.
http://zelmanpartisans.com/?p=5849
Arbitrary, endlessly variable laws are not laws. And compliance becomes impossible.
I knew that they classified it as a machine gun. I was not aware that they changed their minds and decided it was needed more to tie shoes than to kill enemy troops in the wire.
I am surprised that they changed their minds on anything.
Semi-auto open bolt
Shoe string
Akins Accelerator
Bump-fire stocks
Almost anything Len Savage submits for classification
What constitutes “80%” in polymer lowers
That’s just off the top of my head.
I suspect there at least a coule hundred thousand of those thingies still in the hands of the general public. They are squirrelled away where gummit goombahs are unlikley to happen across them. Once in a while one will”surface” under the watchful prying eyes of aforementioned gummit goombahs, and someone will be buried under legal trouble.
Should the folks in their black nighties ever get round to doing right, those devices willl resurface and once more see the light of day.
But Carl, you accurately score a ten-ring on the REAL question, the issue for which I suspect this whole schemozle is a trial balloon: CAN the executive branch get off with blatantly making law on whmsey, or will BATF/DoJ,Trump get their comeuppances as are rightly due?
What I really wonder is this: WHO IS IT that got so much of Trump’s ear to compel him to do this? SOMEONE has SOMETHING on him. And if this survives the courts and comes out right, under the Constituton, I wonder what will be the NEXT “emergency” screaming for more cheating for someone to get their way.
“WHO IS IT that got so much of Trump’s ear to compel him to do this? SOMEONE has SOMETHING on him.”
I think bump stocks was pure political expediency. The media frenzy caused people to want them gone. Trump saw it as no big deal, because relatively “few” people would be affected. And then the VNRA gave him the go-ahead.
Trump has never been pro-gun, so all he needed was the VNRA to signal that it was OK. No needed to have something on him.
Too late…
https://dispatchesfromheck.blogspot.com/2015/12/heretofore-otherwise-law-abiding-gun.html
I’ve been addressing “compliance” rates for years.
CA “assault weapon” registration: 2.33%
CA bullet-button ban: 3%
NY SAFE: 4.45%
CT “assault weapon registration: 13.44%
CT “high capacity” magazine registration: 4% (including that 1 guy with 500K mags)
Bump-fire stock ban: 0.16%.
The battlefield is no place for clear-cut principled decisions. Likewise, politics.
My suspicion is that Trump did us a favor in the face of a difficult circumstance. Had he not thrown an administrative skunk in the works, Congress would have amended the NFA; and not so narrowly as the DoJ’s bump-stock ban.
We hold that what Trump did was UN-Constitutional. Will we sustain our case? Where? In SCOTUS; or, perhaps, in a Circuit court.
If a Circuit court rules Trump’s administrative rule UN-Constitutional then SCOTUS won’t have to step to the plate. If a Circuit court upholds the rule then SCOTUS will have the opportunity to rule – if it wishes.
SCOTUS will have to read our briefs and come to a conclusion. Will they uphold the power of the President (thru his executive agencies) to usurp Congress’ exclusive power to legislate? How eager will they be to do that sort of damage to the checks-and-balances of the Constitution?
WE are all thinking that this is about guns. SCOTUS will look at it entirely differently. I don’t think SCOTUS will look at the bump-stock ban as a 2A issue at all! It is – instead – a separation of powers issue. Do we really think that SCOTUS is eager to make the President a king – rendering Congress superfluous?
If Trump “loses” his bump-stock administrative ruling he can shrug his shoulders, say, ‘Sorry, my bad’, and give another speech at the NRA Annual Meeting. Most of us will still not understand what happened.
Mark, I don’t think you’ve been keeping up on the subect
“My suspicion is that Trump did us a favor in the face of a difficult circumstance.”
In fact, the legislation that had been proposed was more narrowly tailored than Trump’s fiat. And that’s without considering the “semi-auto problem” that gun controllers are already latching onto.
“If a Circuit court rules Trump’s administrative rule UN-Constitutional then SCOTUS won’t have to step to the plate.”
Multiple Circuits and SCOTUS have already pre-ruled, by denying temporary stays, holding that we are unlikely to prove our case.
“WE are all thinking that this is about guns.”
What do you mean “we,” Kemosabe? I’ve only been addressing the issue of allowing the government the power to arbitrarily make law and change definitions since 2015.
“I don’t think SCOTUS will look at the bump-stock ban as a 2A issue at all!”
And the lawsuits aren’t addressing this as a purely 2A issue. We are challenging 1) the power to redefine words, 2) actions that are in direct conflict with physical reality, 3) violations of administrative procedure law (which also gets into due process), 4) usurping Congressional power, 5) uncompensated takings,and 6) even the fact that they lied about procedures in the final rule. All of that was in briefs submitted to SCOTUS in the injuction appeals. They denied.