Tag Archives: ATF

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, 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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Uncategorized

Uninformed “Whistleblowers”

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I spotted an odd headline today.

Biden Administration Preparing to Ban Private Gun Sales: Whistleblowers
President Joe Biden’s administration has drafted a document that would effectively ban private gun sales by requiring background checks for all transactions, even those made between private citizens, according to a whistleblower group.

That would be Empower Oversight, more of a whistleblower support organization. But why we need “whistleblowers” to tell us that the ATF is sneaking around to change the rules is odd…

Since they published the Notice of Proposed Rule-Making last year. You commented on it, right? Maybe your comments even got posted. Maybe.

What Empower Oversight did was send a letter to Attorney General Merrick Garland about those devious miscreants at the ATF.

The draft rule received immense comment and was interpreted by many to require that any private citizen who sells even a single firearm online might be required to register as an FFL…

Yep. I certainly did. Because it would.

This proposed rule, essentially requiring any person, selling a single firearm to pay bills, to first obtain a Federal Firearms License (FFL), is blatantly unconstitutional. It also would not work as advertised, and would even be counter-productive.

But back to EO’s letter.

<

…despite clear language in law since 1986 that the term “engaged in the business” of selling firearms “shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms,”

They are referring to the Firearms Owners Protection Act of 1986. And yes, that language was there. But they missed the bit in the so-called Bipartisan Safer Communities Act of 2022 that The Zelman Partisans warned you about.

When we heard that these senate scum would “clarify” what it means to be in the “business” of selling firearms — requiring an FFL — I hoped, but didn’t actually expect, that they might finally set a threshold for number of sales in a defined time period. That isn’t what we’ve gotten.

Instead, they changed the definition from “with the principal objective of livelihood and profit” to “predominantly earn a profit”.

No longer would you need to be selling enough guns to make a living. Just a single sale, if your intent is to make money, suffices to require a Federal Firearms License. There is no exception for sales to friends or family. There is no exception for sales to pay off medical bills.

They legislatively changed the old 1986 definition. The ATF’s rule is “merely” implementing the law.

Perhaps Empower Oversight should assign someone to watch TZP for updates like that.

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authoritarian swine, gun control, Law

Hey! My “Engaged In The Business” NPRM Comment Finally Appeared.

1 Comment

It only took four tries, and a week, but they finally accepted one from me.

Regulations.gov claims…

Posted by the Alcohol, Tobacco, Firearms, and Explosives Bureau on Sep 15, 2023

…but I happened to check on the 15th, and it was not found.

Between my personal commenting and TZP’s, we only have a 42.9% success rate in getting the ATF to accept comments.

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Administrivia, authoritarian swine, gun control

ATF NPRM Commenting FUBAR As Usual

As I noted on September 8, the ATF is screwing up commenting on the “engaged in the business” Notice of Proposed Rule-Making.

In short, as dockets changed and vanished in a period of minutes, I found it desirable to comment six times; three times on behalf of TZP, and three times for myself personally.

Regulations.gov is now posting comments, so I checked the status of our comments. It ain’t pretty. I’m documenting the results so I have a public record of what is happening.

TZP Comment Tracking Numbers (in order submitted)

One lost, submitted after first that’s there, and before the other that’s there.

Personal Comment Tracking Numbers (in order submitted)

  • lma-m7xn-uqi0 (not found)
  • lma-nseu-zlmo (not found)
  • lma-p5qv-j9z4 (not found)

NONE of my personal comments can be found. Note that all were submitted after the first TZP comment appearing, and two before the third TZP comment that appears. My third comment was posted last. I see other people’s comment appearing that were submitted
days after mine. I have email confirmation that my comments were received (for two; I forgot to enter my email address for one).

I have now submitted a fourth attempt at commenting; Comment Tracking Number: lmg-ih6a-k2ww. I’m still waiting for the email confirmation.

Please let us know in comments below if you are also having difficulty commenting on the NPRM.

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Action, authoritarian swine, Constitution, gun control, Law, SCOTUS

[UPDATE 2] “Engaged In The Business”

UPDATE: As always, it appears that the ATF screwed up the NPRM. The links I posted earlier now go to a error page.

We’re sorry, an error has occurred
A general error occurred while processing your request.

Now the correct URL is https://www.regulations.gov/document/ATF-2023-0002-0001. For now.

This change, as in the past, probably trashed all comments that had been submitted. So I’ll comment again. And very likely — based on the ATF’s history of NPRM errors — a third time. We’ll see.

Update 2: The new second docket, AT-2023-0002-0001, briefly went dead, but now appears again. It’s unknown if the comments we submitted were retained. We’ll submit comments again just in case. But…

A THIRD docket, ATF-2023-0002, is ALSO live.

Live, but empty at this time. If you look at the “Browse Documents” tab, it does link back to the intermitteently visible ATF-2023-0002-0001.

So as of 9/8/2023, 10:20 AM EDT, we’ve had

  • ATF_FRDOC_0001-0051 (dead)
  • ATF-2023-0002-0001 (sometimes there, sometimes not)
  • ATF-2023-0002 (empty, but links to ATF-2023-0002-0001; it may be a “home folder” for 2023 NPRMs)

This looks very much like someone is deliberately interfering with commenting.

Original post follows.

Of screwing Americans. The ATF is that. As usual.

More than a year ago, The Zelman Partisans warned that the so-called Bipartisan Safer Communities Act changed the definition of “engaged in the business” of selling firearms. And not in a good way.

No longer would you need to be selling enough guns to make a living. Just a single sale, if your intent is to make money, suffices to require a Federal Firearms License. There is no exception for sales to friends or family. There is no exception for sales to pay off medical bills.

The ATF has published their Notice Of Proposed Rule-Making (NPRM) instituting this change. There is a 90 day commenting period. I encourage you to comment and point out the idiocy of the ATF and Congress. TZP has done so. Feel free to use this as a basis for your own comments.

This proposed rule, essentially requiring any person, selling a single firearm to pay bills, to first obtain a Federal Firearms License (FFL), is blatantly unconstitutional. It also would not work as advertised, and would even be counter-productive.

Allow me to explain.

The proposed rule is in absolute, direct conflict with Supreme Court rulings in HELLER, MCDONALD, and especially BRUEN.

There is no general, historical tradition that has required private citizens making private, occasion sales — as opposed to deriving a significant, ongoing income from regular sales — to first obtain an FFL. That is not “consistent with the Nation’s historical tradition of firearm regulation.” Never before has such a thing been required.

In fact, even the FFL itself fails BRUEN’s general, historical tradition test as no federal license for those actually engaged in the business was required until passage of the Federal Firearms Act of 1938 (FFA). America got along just fine without any such law for its first 162 years.

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.

Should a significant number of America’s 100+ million gun owners decide they need an FFL, just in case they might be in a car accident and need to sell their collections to cover medical expenses, the ATF will be swamped with Form 7 applications. The waiting time will rise from the current two month estimate to — potentially — years, leaving said bills unpaid and the victims of unchecked bureaucracy bankrupt. I strongly suspect the Supreme Court would find that such delays themselves are an unconstitutional infringement of the Second Amendment.

Allegedly, this proposed rule would have the effect of instituting universal background checks. I think someone failed to consider the effect of 18 U.S. Code § 922(t)(1). With a significant percentage of the gun-owning population being new FFL holders, they could happily transfer all the firearms they wish amongst themselves anyway; be it a previously-private sale, or a conventional purchase in a gun store.

The number of gun purchase background checks would DECREASE.

My personal comment added this line.

Please extract your craniums from your rectal orifice before it’s too late.

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Courts, gun control, Law

Win For Pistol Braces: A Battle, Not The War

The Fifth Circuit just ruled against the feds in the Firearm Policy Coalition case on the new ATF rule on pistol braces as short-barrel rifles.

Federal Appeals Court Finds ATF Pistol Brace Rule Is Likely Unlawful: ‘Impossible For A Regular Citizen’
Smith wrote that the rule makes it “nigh impossible for a regular citizen to determine what constitutes a braced pistol” and whether “a specified brace pistol requires NFA registration.”

No kidding. The Zelman Partisans noted that more than two years ago, when the Notice of Proposed Rule-Making was published.

This proposed rule is a coherently expressed description of an arbitrary, capricious, and incoherent process of classifying firearms.

As no standards were given, a subjective examiner’s guesstimate of “rear surface area” could pass a brace, or put it right on the edge of alleged short-barreled rifle by itself. Will one examiner estimate the “rear surface area” of a cuff-type brace by the physical area of the rear EDGE of the cuff, while another goes by the area of the space ENCLOSED by the cuff?

After the commenting period was over, the actual rule even worse than what was proposed. They tossed their proposed “checklist,” and switched to a list of arbitrary characteristics that went undefined; it was left up to each individual evaluator.

If you scroll down to page 268, you’ll find the actual final rule, and see that they opted for a evaluation system even more “arbitrary, capricious, and incoherent” than the 4999.
[…]
How much surface area does it take to create a rifle? The rule doesn’t say, leaving it up to “”arbitrary, capricious, and incoherent” FTB evaluators. Just think: the more firearms they can declare short-barrel rifles, the more tax money they can collect. No perverse incentive there, eh?

In short, braced pistol owners were left with two options to determine if their pistols had magically morphed into rifles: Send it to the ATF for individual determination, or wait to be arrested for possession of an unregistered short-barrel rifle.

This isn’t a final win. The Fifth Circuit panel only said that the rule is likely to be found to be unlawful. Based on that likelihood, they sent it back to the district court to reconsider an injunction against enforcement of the capricious rule.

I suspect this is going to bounce back and forth a while longer.

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authoritarian swine, Courts, Culture, gun grabbers, guns, Politics

Too Big for their Britches

A friend of mine in far away Nicaragua sent an article recently that reminded me very much of one I wrote years ago. I attempted to find the disc I have the original on to pick some sections out if it to quote. But well, once I hit some old photos and started copying and pasting and had gone through about a half dozen or more discs I decided to knock it off and just go off recall. Some of the worst I can remember. Besides which, it fits into a larger pattern I’m seeing and I don’t like it, and I don’t like where it’s headed.

So, what’s put the burr under my saddle blanket this time and has me highly annoyed?

UN-elected bureaucrats. They are often confused with bottom dwelling pond slime, so be able to tell the difference, it’s very slight sometimes.

Apparently in Virginia some bottom feeder from Virginia Department of Wildlife Resources decided they could go wherever they chose, in camo, and steal a man’s game camera and terrify his family while they played basketball by lurking in the family’s woods and behaving like a voyeur, a state funded stalker if you will. When the terrified wife ran for her husband the state funded thief took off. With their game camera. There’s more of course. Virginia wildlife officials trespassed on man’s land, stole his trail camera, lawsuit alleges

Now it doesn’t take much to set me off on the Department of Conservation, I despise them. They can and do come onto your land without a warrant, poke around wherever they choose, if you have locked gates it doesn’t matter. If you have livestock and they let it out, they are not liable. If your livestock gets out in the road and causes and accident, they aren’t liable, you are. If it was livestock you were fond of? Tough. Like I said, bottom dwelling pond scum. In the article I wrote years ago it talked about some pretty egregious things. There was a movement in my state a few years ago to rein them in. They’ve been known to seize mounted deer heads worth a lot of money and claim the owner wasn’t entitled to them. No warrant. Game meat taken out of freezers, there was a large group that had met several times to discuss what was going on with the Department of Conservation. People contacted their elected representatives, promises were made and, nothing, zip, nada. Their behavior really is criminal. For example;

Once I asked Ziehmer if he approved of the situation down in Douglas County where a dying man had willed 200 acres of land to the Department of Conservation. Just after the man died the department sent in their surveyor and attempted to rearrange the boundary so that it would take about 25 or 30 acres from three neighboring landowners without ever notifying them.

This involved cutting trees from neighbors’ land, setting a new boundary and posting signs telling the real owners of the land to stay off the land they had owned for decades. The landowners had to pay lawyers quite a lot of money and go through a long legal battle just to get back that land. In that interview I asked Ziehmer why they had done such a thing. Draper looked at him as if to say ‘‘keep quiet’’ and then he answered with something that sounded as if he had written it down and memorized it.

“The people of It Could Be Any State USA expect us to accumulate and expand land for them to hunt or hike or otherwise enjoy,” he said.

My next question was, “Do you think the people of Missouri collectively would approve of what you did there next to land a dying man gave you, a man who had long known and respected his neighbors. If all It Could Be Any State USA citizens knew all about it, would the majority be happy with what you have done?”

My latest interaction was they showed up on my land for no good reason. One of my neighbors tipped me off they saw him snooping around. I’m a vegetarian. I don’t hunt and I don’t allow it. So. I called up the local game warden and politely introduced myself “Yes this is Sheila at 1313 WhatTheHeckAreYouDoingOnMyProperty Lane. I’ve been informed you were on my property, uninvited. Why?” I managed to keep the growl out of my voice, and I’m very proud of that. Well, turns out he was looking for baiting. I’m a vegetarian and I don’t allow hunting. Why didn’t you check with me? Now I’m well aware they don’t have to. These unelected bottom feeders can go anywhere, even the country sheriff can’t really do that without a reason, I don’t believe. Well, he finally admitted he was on the wrong property….ass. Bet he votes Demoncrat.

But with the way things are going I can well see a department that already abuses their authority to do unscrupulous activity for an unscrupulous law enforcement agency. Need a little look-see and don’t have a warrant and can’t get one? Call your local game warden. Bottom feeders. Ok, ok, I’ll admit, I’m biased, but I don’t like bullies and I don’t like liars. YMMV, but you might want to look into what your Department of Conservation can get away with.

But this next too big for their britches, or their job description I think we can agree on.

It Begins: 20 Heavily Armed IRS and ATF Agents Raid Great Falls Gun Store, Seize Firearm Purchase Records

In MONTANA! For pete’s sake in MONTANA!!

“We have now confirmed that both the IRS and the ATF were at Highwood Creek Outfitters in Great Falls around 7 am this morning. Both the IRS and ATF would not say why they were there,” KMON Radio reported.

“A spokeswoman for the IRS would only say they were there on official IRS business. The ATF says it was providing assistance to the IRS. We attempted to enter the store today and were stopped by agents at the door who would only say that the gun store is closed and will reopen tomorrow,” the news outlet added.

….

Although the Montana Department of Justice claimed no involvement in the incident, an IRS spokesperson confirmed their presence at Highwood Creek Outfitters but refrained from providing further details.

….

The recent incident has attracted political attention, with Congressman Matt Rosendale expressing his concern over the IRS and ATF’s actions, interpreting them as another example of the Biden regime’s weaponization of federal agencies against hardworking Americans.

“I’m incredibly disturbed by initial reports that the IRS and ATF closed Highwood Creek Outfitters without any warning today,” said Rep Rosendale in a statement.

Well, no flies on Rep. Rosendale…what did people think the IRS would do when they got all that shiny new firepower and ammo except use it on law-abiding citizens. Dealing with criminals is dangerous! These days there is no government bureau that is not abusing it’s power and will not abuse it.

You know, we’ve sent an awful lot of taxpayer money to be laundered in Ukraine and sent back shiny and clean to the Bidden crime regime. We’ve got to cut corners somewhere. Defund the ATF, FIB, CIA and IRS. It won’t begin to cover the debt, but it’s at least making a start.

They’re too big for their britches.

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Action, authoritarian swine, Courts, gun control, Law

Pistol Brace Rule

1 Comment

It’s probably worth noting that the ATF’s pistol brace rule was formally published in the Federal Register today, making it official.

The countdown has started. If you have a braced pistol, you have 120 days to decide how to proceed.

You may have heard that those attempting to register braced firearms as short-barrel rifles, may have an issue. Some claimed that if the form isn’t processed in 88 days, then it’s automatically denied. A more cogent explanation clarifies that.

When you apply for your tax stamp, the ATF goes to the FBI’s NICS for a background check. Unlike a firearm sale, which can proceed if the NICS check doesn’t come back in three days, at 88 days without a NICS response, the application is denied. It’s then up to you to go to the FBI and ask “What the heck’s going on with my background check?” and resubmit your stamp application.

Meanwhile, the Firearms Policy Coalition has already filed its lawsuit challenging the rule. I’m not sure if they were the first, because it looks like it was a dead heat with the Wisconsin Institute for Law & Liberty’s lawsuit.

Good luck, folks.

 

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