There’s a little more good news regarding the ATF’s unlawful and unconstitutional pistol brace rule. Another federal judge has issued an injunction against enforcement of the rule in Britto v. ATF, No. 2:23-cv-19, in the Northern District of Texas.
The good news:
Under the APA, courts must “hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “in excess of statutory jurisdictions, authority, or limitations, or short of statutory right.”
Arbitrary and capricious? Most definitely, as The Zelman Partisans told the ATF during NPRM commenting period.
This proposed rule is a coherently expressed description of an arbitrary, capricious, and incoherent process of classifying firearms.
They should have listened.
But back to the injunction. Kacsmaryk cites the Fifth Circuit’s ruling in Mock v. Garland, which found the rule to violate the Administrative Procedures Act, resulting in an injunction against enforcement of the rule, but only for the plaintiffs in that case
Given the Fifth Circuit’s holding, this Court recognizes that the Rule “was not a logical outgrowth of the Proposed Rule” and “must be set aside as unlawful.
That was the good news. The Rule is unlawful because the ATF violated the Administrative Procedures Act (which is something of a habit for them). Better news: the injunction is nationwide and not limited to the plaintiffs in this case.
The bad news…
That holding alone establishes that Plaintiffs “have demonstrated, a fortiori, an actual success on the merits of their APA challenge to the … Rule.”
It goes without saying that constitutional questions should be avoided if there are independent ‘ground[s] upon which the case may be disposed of.”
No, it should not go without saying. Why does statutory law — the APA, in this case — take precedence over the Constitution and Second Amendment, the question of which the plaintiffs definitely raised?
Laziness, and fear of dealing with constitutionality until absolutely forced to do so. Which conveniently leaves the ATF free to try yet another unconstitutional rule, until some judge finally decides to take note of said Constitution.
And as Judge Tipton noted in a similar case, “it would be improper for this Court to now evaluate constitutional issues” given that “the Fifth Circuit has already decided that the Final Rule violates the APA.”
Grow some balls, Kacsmaryk. Give us a constitutionality precedent, one way or the other.
Because a three judge panel of the Seventh Circuit Court of Appeals just upheld, 2-1, Illinois’ “assault weapon” ban in Bevis v. Naperville (which is actually six separate challenges to “assault weapon” bans in Illinois, consolidated), and mangled BRUEN in the process. To do this, the lying bastards started with the BS “weapons of war” argument. And went downhill from there.
Honestly, this decision reads like something you might expect from the Ninth Circuit.
We find substantial support for the proposition that the Arms protected by the Second Amendment do not include weapons that may be reserved for military use.
Because obviously AR-15s are just like “a nuclear weapon such as the now-retired M388 Davy Crockett system, with its 51-pound W54 warhead.” Seriously; they equated semi-auto rifles to nuclear warheads.
And to support that position, Easterbrook and Wood lied about Supreme Court rulings, starting with MILLER, 1939 which said exactly the opposite. This Court resorts to citing the dissent to magically turn military use into common, lawful civilian use, and pretends HELLER said that.
But after Heller, we know Miller does not address a weapon’s military use. Because the National Firearms Act of 1934 targeted the firearms most commonly used by criminals and gangs, Miller’s “lawful use” language relates to criminal use, not military use.
The term “lawful use” doesn’t even appear in MILLER. It had no “lawful use” test. It only used a militia use test:
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
HELLER addressed civilian use of weapons not specifically acknowledged as militarily useful, and asked if possession of those by civilians could be banned. The court concluded that civilian weapons in common, lawful use could not be banned; that there is an individual right to them. And that the right to those not necessarily military-style weapons was subject to reasonable limits.
HELLER didn’t overturn MILLER; it built on it, and added to it. Those judges damned well know what MILLER and HELLER really said. The fact that they twist the words, and outright lie, about them proves their intent was not innocent.
Now that Easterbrook and Wood have pretended that “weapons of war” aren’t 2A-protected, they have to “establish” that AR-15s are military weapons.
Coming directly to the question whether the weapons and feeding devices covered by the challenged legislation enjoy Second Amendment protection, at the first step of the Bruen analysis, we conclude that the answer is no. We come to this conclusion because these assault weapons and high-capacity magazines are much more like machineguns and military-grade weaponry than they are like the many different types of firearms that are used for individual self-defense (or so the legislature was entitled to conclude).8 Indeed, the AR-15 is almost the same gun as the M16 machinegun.
How do they know?
The only meaningful distinction, as we already have noted, is that the AR-15 has only semiautomatic capability (unless the user takes advantage of some simple modifications that essentially make it fully automatic), while the M16 operates both ways.
Sure, an illegally modified AR-15 is is the same thing as an M16, just illegally mounting a 120mm cannon on a Trabant makes it an Abrams M1A1 Main Battle Tank.
Speaking — currently — illegal modifications, these jokers used a timely example.
The similarity between the AR-15 and the M16 only increases when we take into account how easy it is to modify the AR-15 by adding a “bump stock” (as the shooter in the 2017 Las Vegas event had done) or auto-sear to it, thereby making it, in essence, a fully automatic weapon.
Personally, I would have skipped that one, since the same day they issued this ruling, SCOTUS — facing a multi-Circuit split on the bump-stock ban — granted cert to Garland v. Cargill, challenging the ban.
So… they’ve lied their way into declaring that the 2A doesn’t protect “weapons of war,” and that AR-15s are in that class. Now they also had to deal with BRUEN‘s general, historical legal tradition test, which they handled with still more verbal manipulation and selective editing.
The analysis then moves to second step, which calls on the “government [to] justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id. The Court predicted that this second step would be relatively easy in some instances, when historical analogues are easy to find. But in other instances, it recognized that the task would be challenging. It singled out “cases implicating unprecedented societal concerns or dramatic technological changes,” which “may require a more nuanced approach.”
These two would have you believe that if something is new enough, then general, historical legal traditions don’t apply. But what they left out from BRUEN is this part.
Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it.
Yes, the Constitution and the Second Amendment still apply to “new” things like the five decades-old design of the AR-15. Some restrictions on how they are used might be constitutional, but a ban isn’t.
As for “dramatic technological changes” that those early folks could never imagine…
James Madison, known for his role in drafting the Bill of Rights (including that pesky 2A) lived through the rise of repeating firearms, breechloaders, paper cartridges, percussion caps, metallic cartridges, pinfire cartridges, centerfire cartridges, revolvers, and mass production of firearms.
Heck, an early machinegun was pitched to the US War Office in 1812, and patented in 1813 — during Madison’s presidency (and was a refinement of a 16th century machinegun).
Yet never once did Madison stop and say, “Whoa, guys! We didn’t have any of this new shit in mind. The Second Amendment is just for muskets.”
Speaking of “patented”, not only could the Founders envision dramatic technological changes, they counted on it and deliberately promoted it.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Yes, liars, the BRUEN test applies to AR-15s. And I challenge you to provide a citation of the nation’s general, historical legal tradition of banning civilian possession of “weapons of war.” Bear in mind you’ll have to explain away another pesky provision of the Constitution.
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
In case the judges are unfamiliar with Letters of Marque pay attention, too):
Letter of marque, the name given to the commission issued by a belligerent state to a private shipowner authorizing him to employ his vessel as a ship of war. A ship so used is termed a privateer.
Not only was civilian ownership of real weapons of war not banned, they — again — counted on it. Muskets, rifles, cannon, warships; all of them. Moreso, in the case of muskets or rifles, they required private possession of those “weapons of war.”
Granted, these robed morons did cite some legal “traditions” that they would have you believe support a ban on an entire arbitrary class of firearms. But what they came up with were a series of local ordinances barring discharge of muskets and cannon in town, some isolated bans on Bowie knives, or openly carrying certain types of firearms.
They couldn’t find anything in relevant history of a general nature; and remember that BRUEN specifies that isolated local laws don’t count:
The bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry.
There’s nothing of a general law citation until the National Firearms Act of 1934, 143 years after the ratification of the Second Amendment. So my challenge stands.
The third member of the panel, Judge Brennan sanely dissented with his crazed colleagues. While he also addressed procedural issues with the passage of the state ban, he hit on the issues I’ve covered; albeit more formally and politely. Like me, he took issue with Easterbrook and Wood’s mangling and misinterpretations of HELLER and BRUEN. He also objected their “It’s military, so it isn’t protected” position: arms are arms, they’re all protected; some can be regulated but not banned.
I liked this bit that Brennan included, about the whole scary “AR-15s are weapons of war” thing:
The AR-15 is a civilian, not military, weapon. No army in the world uses a service rifle that is only semiautomatic.
That’s a point I’ve been raising for years. None do; the last country I found using them switched to select-fire assault rifles three decades ago.
All in all, I look forward to this being appealed to SCOTUS. I’m sure Clarence Thomas will insist the Court take this up, just so he can judicially bitch-slap Easterbrook and Wood for shredding BRUEN and HELLER.
Federal Judge Strikes Down California’s Decades-Old ‘Assault Weapons’ Ban: ‘No Historical Pedigree’
U.S. District Judge Roger Benitez, a George W. Bush appointee, struck down the 1989 ban, enacted by the California legislature in response to the Stockton school shooting, which prohibits the transfer, manufacturing and possession of certain semiautomatic weapons. Benitez wrote that American tradition “is rich and deep in protecting a citizen’s enduring right to keep and bear common arms like rifles, shotguns, and pistols” and does not include firearm restrictions based on “looks or attributes.”
That’s our guy Benitez again. At least on 2A issues, he’s a constitutionalist, and he read and grasped BRUEN (something most of the Ninth Circuit Appeals haven’t managed).
The problem is that, as always, this case is going to keep bouncing back and forth to the Ninth for years, with endless stays of Benitez’s ruling. Unless and until SCOTUS starts issuing contempt of Supreme Court bench warrants for those who are willfully defying the Second Amendment and BRUEN.
But given that Chief Justice Roberts sided with the gun grabbers on the frame/receiver rule, don’t get too excited about warrants either.
Pigpen51 left a comment on an earlier column regarding the Ninth Circuit Court of Appeals complicity in California’s brazen violations of the Constitution. He thinks the Supreme Court needs to make some rulings with absolutely no wiggle room to allow California — and like-minded oathbreakers — to continue enforcing bad laws.
I hope that they do so with, shall we say gusto, or extreme prejudice, or with a heavy gavel? Because if they leave even the smallest crack in the rebuke, no doubt the anti Constitution liberals will find a way to yet again hold things up
Crack? Taking advantage of a “crack” is what they did with the original Gun-Free School Zones” law. SCOTUS tossed it, so they passed a new bill virtually identical to the original, with “moved in interstate commerce” tacked on.
Mostly they don’t worry about cracks anymore. If a law gets tossed, they simply pass it again with the punctuation slightly altered, and declare that it’s new and SCOTUS hasn’t ruled on this one. That forces the pro-freedom types to waste time and money to fight what is essentially the exact same law. Blue state legislators and AGs don’t mind because it isn’t their money they’re wasting; it’s yours.
SCOTUS should have put a stop to that decades ago. Now, emboldened by SCOTUS’ failure to slap them down, they’re escalating. California just passed a couple more bills that clearly violate BRUEN. And they know it. Newsom said so, saying that they will not be bound by the “general, historical legal tradition” demanded by BRUEN.
“Newsom framed the move as a response to the “rights reduction” caused by gun laws that function under a “1790s framework,” a recording of the signing showed.”
And it wasn’t just Newscum saying it. It’s actually in the bill passed and signed. (It helps to read the “Whereas” rationalization preface to bills, and not just the hard action portions.)
No longer will they need to “keep kicking that can down the road.” If SCOTUS doesn’t start arresting these scumbags, they don’t need to “change the makeup of the court” that they’ll ignore anyway.
No doubt you’ve heard that federal Judge Benitez once again ruled in Duncan v. Bonta that California’s ban on “high capacity” magazines is unconstitutional; particularly in light of SCOTUS’ BRUEN decision. He stayed his injunction until October 2, to allow the state time to file yet another appeal.
And once again the state did appeal to the Ninth Circuit. Which took the unusual action of taking the state’s “emergency” request for an administrative stay past October 2 en banc. Normally such requests for administrative stays is done by a three judge panel.
However, a couple of the Circuit judges wrote dissenting opinions, objecting to the Court gaming the system to delay or deny Second Amendment rights.
I found the dissents to be rather interesting.
Bumatay, J., dissenting:
For over a decade, our court has improperly interest-balanced our way around the Second Amendment. The Supreme Court has had enough of it. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). In Bruen, the Supreme Court made clear that the Second Amendment must no longer be deemed a disfavored right.
With this clear direction from the Supreme Court, you might think that our court would return to regular order and handle this Second Amendment case like all others before our court. And in the normal course, emergency motions would be handled by a three-judge panel. But not here. Because this is a Second Amendment case, we now take the unprecedented step of taking an emergency motion as an en banc panel in the first instance. While our rules may leave room for such an unusual step, discretion and wisdom counsel against it. Indeed, to my knowledge, no en banc panel of this court has ever handled an emergency administrative stay motion as an initial matter. And the majority cites no precedent otherwise. So I’m left wondering why we rush to do something so unorthodox.
Judge VanDyke doesn’t wonder:
I share Judge Bumatay’s concerns about the irregularities created by this en banc panel’s all-too-predictable haste to again rule against the Second Amendment. Apparently, even summary reversal by the Supreme Court has not tempered the majority’s zeal to grab this case as a comeback, stay the district court’s decision, and make sure they—not the original three-judge panel—get to decide the emergency motion (and ultimately, the eventual merits questions) in favor of the government. I think it is clear enough to everyone that a majority of this en banc panel will relinquish control of this case only when it is pried from its cold, dead fingers. And I think it is clear enough to everyone why.
Excellent turnabout of the “cold, dead fingers” cliche, Your Honor. I laughed, which rarely happens when reading court decisions and dissents.
And yes, the reason is clear enough. The Ninth is determined to allow California to continue violating the 2A, and is play games with stays and appeals, and bumping cases back to lower courts instead of doing their SCOTUS-mandated job.
if the Ninth had to take this request en banc, what they properly should have done was say Stay denied. We already sent the state’s appeal back to the district for a final ruling in light of BRUEN. The district court granted a permanent injunction against the ban in light of BRUEN. The lower court’s stay is lifted, and the permanent injunction against enforcement is upheld.
And I’d bet good money that when the state’s actual appeal is filed, the Ninth will find an excuse to bounce the case back to the district again, rather than make a final decision so that either 1) the state concedes, or 2) the state finally appeals to the Supreme Court.
This sort of judicial lawfare is just going to continue until the Supreme Court finally takes notice of lower courts and other officials blowing off its decisions, and starts finding offenders in contempt and issues bench warrants.
Hunter Biden has been indicted for possessing a firearm while being a user of illegal drugs, and lying about it on the 4473. If the law is for everyone, I think it’s… ahem high time.
Technically, he was indicted for the 4473 lie previously, but was going to be allowed to completely skate on the charge, with pre-trial diversion. Some of us wondered, if his name wasn’t “Biden,” whether he would have faced more serious penalties. But this being 21st century America, Dimwitocrats have turned that around now.
I found all those recent (post Hunter’s little possession adventure) cases in about two minutes with a single web search.
And, as states decriminalize majijuana use, that federal firearm prohibition is of concern to users, who seem to be a bit more aware of the issue than is Rep. Goldman.
However, given prosecutor Weiss’ eagerness to let Hunter Biden off, I wonder if he isn’t clued in a little better, legally speaking. Earlier this year, in US v. Harrison, a judge ruled this restriction on unlawful drug users’ possession of firearms to be unconstitutional, having applied the BRUEN precedent of general, historical legal tradition.
My guess is that Crackhunter will make that same argument, and Weiss will decline to challenge it. The possession charge, at least, goes away. Weiss declines to appeal. Hunter walks.
It appears the Biden crime regime is waging a war against law-abiding citizens who are Second Amendment supporters by attacking them on First Amendment grounds. Yes indeed Barry Sotero is enjoying his third term via his favorite sock puppet the corrupt Joe Biden, so Biden is carrying on Barry’s proud tradition of using government to attack citizens by force, with lies and with government agencies gone rogue.
They went so far as to physically attack January 6th attendees. We know that incompetent, corrupt (and now promoted) Michael Byrd murdered Ashli Babbit.
Julie Kelly has been covering the trials going on for the January 6th political prisoners, and she’s been pointing out the absolute travesty of justice going on.
BREAKING: Judge Tim Kelly just made destruction of part of a temporary metal fence on govt property a federal crime of terrorism.
Said removal of fence was part of the Proud Boys “conspiracy” to “influence the conduct of government.”
This dramatically increases base level of jail time for Joe Biggs and Kelly no doubt will do the same for the other Proud Boys.
Knew it was coming but still flabbergasted.
She also has pointed out that the “judge” in the President Trump trial in the banana republic formerly known as the USA is far from being an acceptable judge.
Chutkan comes from a family of influential Jamaican Marxists.
In addition to her bias against the January Six defendants, she was appointed by Barack Obama. He nominated the most radical judges he could find.
She also worked at the same law firm as Hunter. Let’s just say, for argument’s sake, that she can be impartial; what about her past with Burisma and her former law firm representing Fusion GPS? She didn’t recuse herself when the Fusion case came up until she was found out the day before the proceedings.
She has referred to defendants as insurrectionists, and her sentences were the harshest of the judges.
Now Kelly is out with a new report about a hearing before Chutkan, and “it’s worse than reported.”
NEW: I have transcript from today’s hearing before Judge Chutkan and it’s worse than reported.
Chutkan marveled at Jack Smith’s rapid “discovery” production while downplaying fact DOJ could not name a single case in DC District that went from indictment to trial in 5 months: pic.twitter.com/pAxcBlv7dv
President Trump was correct when he said they weren’t really after him, he was just in the way of them coming after U.S.
So January 6th fedsentation (a lot like a presentation staged by feds) stopped the challenges to the fraudulent election that were going to be presented. The people (except for the feds, corrupt cops and antifa) that had gone there, had gone to express their grievances, something that is allowed by law. Unlike BLM they didn’t riot or burn cities, no, others presenting themselves as Trump supporters did that.
They have no problem with stifling free speech, that became crystal clear during the covid fiasco. Nor do they have a problem stifling free speech to keep you from defending yourself or others. Such as lawyers. Rules and laws no longer apply to the left.
The weaponized DOJ is also determined to disarm law-abiding citizens. Pawshawwww, pesky Constitution. Why worry about that when you have the Department of Veteran’s Affairs…again.
This outrages me as these are men and women who were willing to place their life on the line for our country. And they basically stand to lose human rights (self-defense) because they didn’t balance their checkbook?
The legislation, introduced on Friday by Reps. Roy, Eli Crane of Arizona, Lance Gooden of Texas, Andrew Clyde of Georgia, Andy Harris of Maryland, and Mary Miller of Illinois, specifically bars the VA from sending veterans’ names to the Department of Justice to be added to the federal government’s no-gun list.
….
FBI data from 2023 shows that nearly 98 percent of the names placed in the NICS “mental defective” category by federal agencies were handed over to the FBI by the VA.
….
A memo released by House Veteran Affairs Committee Chairman Mike Bost notes that the decision to name a fiduciary and disarm veterans is often made by “VA general schedule employees, not a court or similar judicial authority.” There is an appeals process for veterans who want “relief of firearms prohibitions imposed by the law” but whether or not that relief is granted is once again determined by the VA.
And if disarming them via government agency isn’t sufficient, they’ll just have a government agency shoot you, stone cold, graveyard dead.
On August 9th in Provo Utah an elderly senior citizen, Craig Robertson was killed in his home. My comments come are in regards to the following article. Apparently the basically home-bound elderly man who took care of his visually impaired son had grown dissatisfied with the Biden Crime Regime’s continual attacks on our country, it’s citizens, borders, way of life and Constitution.
According to an email from FBI spokeswoman Sandra Barker, Craig Robertson “resisted arrest and as agents attempted to take him into custody, he pointed a .357 revolver at them.”
Despite this assertion, the agency hasn’t presented any corroborating evidence. When questioned about photographic or video proof of Mr. Robertson’s alleged action, Ms. Barker refrained from commenting.
Yeah, maybe so, maybe not. The FIB seems to lie about everything these days. I wouldn’t trust them if they told me it’s still Summer. But what the neighbors had to say was pretty interesting as well. What is it with the FIB and these early morning in the dark raids? It’s almost like they are trying to provoke a response to an intruder. Why don’t they walk up to the door at noon, just knock and say “We’d like a word, please”. And this over the top tactical team crap is ridiculous.
His social media also showcased support for former President Donald Trump, displayed tactical equipment, and boasted an expansive firearm collection. Neighbors estimated he owned about 20 guns.
In Texas isn’t that called a neophyte or hobbyist?
During the warrant execution before sunrise, officers employed flash bangs to get Robertson to leave his house. When he refused, alleging innocence, gunshots ensued around 6:15 a.m. local time, as per Jon Michael Ossola, a witnessing neighbor.
Subsequent local accounts state that Robertson was pulled out of his home, where he succumbed to his injuries on the sidewalk, concealed beneath a sheet.
Other neighbors had more to say, so this is kind of out of order from the article.
Another neighbor, Katie Monson, recounted to The Associated Press how agents unsuccessfully tried to breach Mr. Robertson’s door with a battering ram, then used a tactical vehicle. After hearing shots, she saw officers pulling Robertson outside.
A battering ram and a tactical vehicle for a 75 year old disabled man?? Seriously? And about them shooting at Robertson…
The incident escalated when Robertson reportedly aimed a firearm at law enforcement, prompting what witnesses called a “hail of bullets” at his Provo home.
Aimed, not discharged. It’s still dark and he answers the door with a gun in his hand…again, why not noon, knock on the door, and say “We’d like a word”.
His relatives said Robertson — who they described as a “firearm enthusiast, collector and gunsmith” — loved the US “with all his heart” but had become increasingly disappointed by the Biden administration.
“He was understandably frustrated and distraught by the present and on-going erosions to our constitutionally protected freedoms and the rights of free citizens wrought by what he, and many others in this nation, observed to be a corrupt and overreaching government,” the statement said.
“As an elderly — and largely homebound — man, there was very little he could do but exercise his First Amendment right to free speech and voice his protest in what has become the public square of our age — the internet and social media.
Did he say things he ought not have said? Obviously.
This article lists the things off the top of Sen. Lee’s head that were odd. The question came up at a townhall meeting.
My point is, this murder seems to be part of a bigger picture attack on U.S. citizens by various and sundry arms of the Biden crime regime’s captured agencies.
Before the pre-dawn attack on Mr. Robertson, why was the FIB even there?? Because he posted a threat on a social media platform? Because he objected to the erosion of our liberties in the banana republic so the Biden crime regime decided to prove him wrong by murdering him for using freedom of speech? You know, presumably the FIB could do some basic, oh I don’t know, investigation and find out the man is basically home-bound, disabled and 75 freaking years old??? Maybe talk to some neighbors?? You know, investigate? But why do that when you can use all your tacti-cool toys, right? When I took my concealed carry class 153,000 years ago I remember one of the things taught was if you had to be involved in a self-defense shooting, there needed to be three elements.
“I call it the J.A.M. elements,” said Jamison, who also teaches courses on gun laws and safety at Great Guns gun shop in Liberty. J.A.M. roughly translates to jeopardy, ability and means. “First, is the person being placed in jeopardy? Does the person making the threats have the ability to carry out the threat? And third, does he have the means to carry out the threat?” he said.
I would maintain that the elderly home-bound 75 year old caring for his visually disabled son may have lacked some of those elements. I think the FIB case is more like jelly than J.A.M. and that’s what Mr. Robertson was executed for, freedom of speech.
Ayn Rand called it. But then she’d know. She escaped communism.
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.
Basically, it’s a 3D-printed crossbolt safety, instead of the familiar rotating lever. I actually kinda like crossbolt safeties, and might be interested in trying this on an AR just to see if I could get used to it (after forty plus years of M-16s and AR-pattern semiautos).
But that’s not really the truly fascinating part of the Super Safety; it’s the “active trigger system” aspect.
This might sound like a digression, but it isn’t. You may recall the Rare Breed Triggers FRT-15, the forced reset trigger loathed and banned by ATF determination. Pull the trigger, fire a round, and the bolt moving forward again actively forces the trigger to reset forward. If you maintain trigger pressure after firing (rather than manually releasing the trigger), you can immediately press the trigger, firing quite rapidly. It isn’t something I need, but for expensive range fun and certain specialized field situations, it could be handy. The ATF naturally –being the unconstitutional scumbags they are — immediately “determined” that the FRT-15, and other similar devices are machineguns. And, oops, manufactured after May 1986, so no forced reset devices for you. The ATF applied the same pseudo-logic from their bump stock ban, where they redefine “single operation of the trigger” to actually mean “single manual, volitional movement of the finger.”
That wasn’t a digression because Hoffman Tactical’s Super Safety has three switch positions: safe, ready… and right in the middle… forced reset. Yep, albeit with a different mechanism, it can accomplish the same trigger reset as the FRT-15.
You might be wondering why this isn’t covered by the same FRT-15 rule that the ATF used to go after Rare Breed Triggers and Wide-Open Triggers.
There is no such rule. The ATF used a mere “determination letter.” Tim, at Hoffman Tactical noted, “The ATF has not made a proper regulatory determination in regards to forced reset triggers. If that changes, then our intentions may be altered.”
To shut down the Super Safety, the ATF — using their current process — would need to obtain a Super Safety, inspect it, and determine that it specifically is a “machinegun.” Just like they did to Rare Breed.
At which point, Hoffman Tactical need only not 3D-print a Super Safety, leaving the ATF to redefine itself as the Bureau of Alcohol, Tobacco, Firearms, Explosives, and Computer Code. Which hasn’t gone well for the the feds in their fight with Defense Distributed over Ghost Gunner CNC mill computer code.
Or the ATF could just keep blasting out individual determination letters, like shot from a shotgun, every time someone clever comes up with yet another forced rest system. At which time, the innovators just generate yet another forced reset system (I’m thinking a modified bolt carrier group). Lather, rinse, repeat.
Alternatively, the ATF could promulgate another rule generally declaring any forced reset device to be a machinegun, and go after the smart folks automatically. For what it’s worth, I don’t think the ATF can legally make any such regulatory determination. That would require legislative action, not fiats from bureaucrats (FRT-15, unfinished frames/receivers, pistol braces, bump stocks, open-bolt semi-autos, etc). Thus far, the ATF has been relying on Chevron deference to get away with reinterpreting laws for its own benefit.
Right now, Chevron deference is in serious trouble. And several courts are noting that Chevron deference is only supposed to apply to civil law, not criminal law with criminal penalties. If LOPER BRIGHT ENTERPRISES v. RAIMONDO tosses deference, then a large swath of ATF rules will be ripe for toppling.
Would the ATF then simply go back to individual determination letters? (At least they might be too busy with paperwork to kick in doors and stomp kittens.)The fact is that even determination letters of the sort used for forced rest, bumpstocks, and pistol braces still rely on deference to allow them to redefine words.
Deference is on thin ice. It is used by courts to “defer” to bureaucrats in cases where the law is so vague that even the court can’t decide what the devil the lawmakers were trying to do; so they leave it up to the unelected bureaucrats. That’s lazy, and that’s wrong.
If a statute really is that vague, then it is unconstitutionally vague and must be voided. If the statute is clear, then the bureaucrats have no business “interpreting” it, to expand their power.
It’s a binary solution set: Either the law means exactly what it says, no more, no less; or the law is void for vagueness.
The ATF might find it a little harder to make “determinations” that your neat gadget violates an unconstitutional and voided law.
I wish Hoffman Tactical the best in the inevitable legal conflict with the ATF goons.
Tisha B’Av Is the Saddest Day of the Jewish Calendar
Tisha B’Av, the 9th day of the month of Av (Jul. 26-27, 2023), is the saddest day on the Jewish calendar. Referred to by the prophet as “the fifth [month] fast,”1 it is second in severity only to Yom Kippur, which is mandated in the Torah.
It Commemorates Several Tragic Events
Both Holy Temples in Jerusalem were destroyed on this date. The First Temple was burned by the Babylonians in 423 BCE and the Second Temple fell to the Romans in 70 CE, unleashing a period of suffering from which our nation has never fully recovered.
In fact, the tragedies of the 9th of Av predate the destruction of the Temples: this was the date upon which the spies returned from the Promised Land with frightening reports and the Israelites balked at the prospect of entering the land.
In 133 CE, the Bar Kochba revolt against the Romans ended in defeat. The Jews of Betar were butchered on the 9th of Av and the Temple Mount was plowed on the same date.
Later on in our history, many more catastrophic events happened on this day, including the 1290 expulsion of England’s Jews and the 1492 banishment of all Jews from Spain.
But this is more about why the temples were destroyed. As Rabbi Tovia says in the following clip, some will say the Babylonians did it (The First Temple) some will say the Romans did it (The Second Temple) but no, actually it was because of the hatred we had for each other.
Baseless hatred. This is probably something that should have a bit of rumination as both Israel and America are bitterly divided right now. There are similarities. The fomenting of hatred and division is coming from the left in both countries now and it’s reaching a fever pitch.
In Israel the division is manufactured by the left and financed by NGOs, the US State Department (tax dollars that haven’t yet been laundered in Ukraine) George Soros and the like. They have admitted that, just not the amounts. The vehicle chosen for this is something called “Judicial Reform” and it is sorely needed.
Moshe Feiglin made the comment recently that “The left would be willing to burn down the country just as long it would be them standing on top of the ashes proclaiming they’re taking over the power.”
The IDF like the American military has been taken over by the left. IDF doctors are also threatening to not show up to work. The IDF including the upper echelon are apparently willing to abandon their country for their devotion to the left, a country with no borders and a religion unto itself. Before American readers feel to smug about this, may I just say Mark Miley, Lloyd Austin and Rachel Levine? Those are strong military leaders? To the left the goal is to demolish the more conservative right, not protect their country.
I listened to a podcast recently and I really wanted to have this column done before the 9th of Av, but that didn’t happen.
So in case you don’t want to listen to the whole thing, here are my points. Judicial reform; in Israel no one including the left is questioning the results of the election they lost. They don’t use voting machines or have drop boxes. It was an honest election. The left lost as most knew they would. So the left does what the left does, they hold their activist Supreme Court so they know they can still get their way. The Israeli Supreme Court is not elected, the members of the Knesset are, by the people. The Knesset make the kind of laws they said they would when they were campaigning. For example, Israel has illegal invaders as well. The illegal invaders have made South Tel Aviv very dangerous, which is bad because that’s where the Central bus terminal is, but even without that, it’s scary. So, the Knesset passed a law, if you’re an illegal invader you no longer get Israeli tax dollars to support you. Go home. They were trying to remove some of the incentives for the illegal invaders to hang around. Yea!! At one time 80% of the Knesset has talked about judicial reform, including the left. The Israeli Supreme Court said nope you can’t do that. Think of a Supreme Court made up of Sotomayors, Jackson Brown, Kagen and the like. You know, useless stupid people that lie. Their whole court is like that. So really, the average Israeli citizens have no representation. Meanwhile the MSM and the leftwing Non-Governmental Organizations who flood Israel with money and influence have convince far too many citizens that their elected officials, that they voted for, being able to pass and implement laws is a threat to democracy. So they are out in the street disrupting lives and traffic, threatening law makers and generally acting the fool. And as Dr. Mordechai notes, the protests against the law and the attempt to overthrow the elected government was in place before the election even happened. It gets really interesting at 4:24 in. Ok, the whole thing is interesting.
In America, we have a President that has clearly betrayed our country. Every decision, every statement harms average Americans and aids either a country that has given his crime family large amounts of money or the illegal invaders flooding our country, many of them young single men of military age. How long before New York looks like France burning? Where and when will the first acts of terrorism occur that the left will try to use to limit the rights of law abiding citizens occur?
I recently heard or read a statement that a certain percentage of viewers of CNN and MSNBC are unaware of any of the Biden crime family’s activities. Unaware! And having in the past had a conversation with consumers of those type of “information” outlets I can tell you pretty confidently that any attempts to offer information or an alternative viewpoint will be met with a parrot like croak of “Fox news talking point”. That’s all they can say. Unless their quoting a medical paper written in Rolling Stone magazine. I’m not even making that one up.
But it’s more about the mindset of those that choose to live in the left’s alternative reality where Hunter Biden, who has been selling access to his father for years is just a poor boy with a “problem” and his Dad the president is just standing by his son, “A father’s love” according to the harpies on The View and the left wing propaganda outlets. Nope, a corrupt family hanging together. And no matter how much evidence is presented, they will be unaware of it.
There is a reason for the divisive hatred boiling in both countries. And it’s all stemming from the left, they foment and feed it. And the propaganda arm disseminates it. Yes, neither country really has a functional military or an actual justice system. America is functioning more as a banana republic than a serious country at this point. But I find it incredibly sad that the day after the 9th of Av both countries are so bitterly divided, and in both countries, it comes from the same direction. Both countries were founded on G-dly principles and the left is trying to destroy that as much as anything I think, as they try to take down both countries. Moshe Feiglin is correct and this bitter division has cost dearly before. Have we learned nothing? I believe, I truly do, we need to pray for Israel to accept their sovereignty and build the Third Temple. I think that would be a good first step in beginning to right the world.
Jews. Guns. No compromise. No surrender.
Password Reset
Please enter your e-mail address. You will receive a new password via e-mail.
