FPC V. Whitaker - A Procedural Attack On The Bump Stock Ban

The Firearms Policy Coalition did two things yesterday. They removed themselves from Guedes v. BATFE by voluntarily dismissing all claims in that case. Concurrently, they then filed a new case, FPC v. Whitaker, which challenges the authority of Acting Attorney General Mattew Whitaker to even sign off and authorize the issuance of the Final Rule banning bump stocks. In other words, they removed themselves from the merits case and filed a new case based on procedure.

You are probably wondering why they are changing course after the first lawsuit was filed. To understand this you must first think of the goal of all of these lawsuits which is to stop the bump stock ban. Then ask yourself which will get decided quicker - a lawsuit with extensive hearings from experts testifying as to why the bump stock is not a machine gun or one that says regardless of what is being banned that Matthew Whitaker doesn't have the authority to even issue a Final Rule?

Take this a step further and look at how judges - especially liberal judges - have treated Second Amendment issues. The answer is not well and certainly not consistent with the intent of Heller and McDonald. Thus, even if you get an "Obama judge", you stand a chance of winning because they can rightfully say they are not deciding a Second Amendment issue but rather an Administrative Procedures Act issue. Actually, it would be helpful to get a Obama or Clinton appointee who has nothing but disdain for President Trump and who would see this as a way of slapping him down. They get some perverse pleasure out of it and we get an anti-gun rule stopped. Moreover, this doesn't stop Guedes or the case filed by Gun Owners of America on the merits as they will continue. This really is three-dimensional chess.

The lead attorney in the case is Tom Goldstein who is one of the premier appellate attorneys in the nation who has personally argued 42 case before the Supreme Court and is the co-founder of the SCOTUSblog. He is being assisted in the case by Daniel Woofter of Goldstein and Russell.

The suit is seeking both preliminary and permanent injunctions against the enforcement of the Final Rule banning bump fire stocks and is also seeking a declaratory judgment that the rule is invalid as Acting Attorney General Matthew Whitaker did not and does not have the authority to sign the rule.

A preliminary injunction is necessary to prohibit the Rule from taking effect 90 days from now and to prevent Mr. Whitaker from unlawfully exercising authority as Acting Attorney General. Mr. Whitaker’s designation as Acting Attorney General violates both the Constitution’s Appointments Clause, U.S. Const. art. II, § 2, cl. 2, and the applicable statutes, 28 U.S.C. § 508; 5 U.S.C. §§ 3345 et seq. Thus, he was not authorized to sign the Rule, and the Rule cannot go into effect without irreparably harming Plaintiff and its members. Accordingly, the declaratory, injunctive, and other relief requested herein is necessary to prevent the implementation or enforcement of this illegal regulation.

The request for relief asks the US District Court for the District of Columbia for five things:

(a) ENJOINS the Rule, Bump-Stock-Type Devices, 83 Fed. Reg. 66514 (Dec. 26, 2018), from going into effect, if at all, for at least 90 days after resolution of this action and all appeals;
(b) ENJOINS Matthew G. Whitaker from exercising any authority as Acting Attorney General, in this or any other matter;
(c) DECLARES that the Rule is invalid as signed by Matthew G. Whitaker;
(d) DECLARES that Matthew G. Whitaker’s designation as the Acting Attorney General violates the Appointments Clause and 28 U.S.C. § 508; and
(e) DECLARES that Matthew G. Whitaker is not the Acting Attorney General.

Regardless of which way the District Court rules on this matter, you know it will be appealed. If the government loses in District Court, they must appeal so as to try and preserve Whitaker's authority to act. If the government wins, FPC will appeal because it is their right to do so. I can see this case ending up before the Supreme Court as it is a direct challenge to President Trump and his authority to name as Acting Attorney General someone who has not been confirmed by Congress.

As I wrote earlier, this is three dimensional chess and it will be interesting to see how the courts rule on this.

UPDATE: I just checked the judge assigned to the case. It is Ketanji Brown Jackson who was appointed to the District Court by President Barack Obama and who was confirmed in March 2013. She also had clerked for Justice Stephen Breyer. This will be interesting!

She’s Right You Know

This is something that I thought that I’d ever write but Sen. Dianne Feinstein (D-CA) is correct. To be more precise, she is correct on one thing. That is that any ban on bump stocks is the business of Congress and not a regulatory agency.

In an op-ed published Wednesday in the Washington Post, she wrote:

Automatic weapons produced before 1986 are highly regulated, and the Bureau of Alcohol, Tobacco, Firearms and Explosives tracks them. Despite this, the agency has consistently stated that bump stocks could not be regulated under the current law. That was because they do not fit the legal definition of an automatic weapon under the National Firearms Act.

Automatic weapons are defined by their ability to fire a continuous number of rounds by holding down the trigger. Bump stocks and other accessories have made this definition largely obsolete, creating a loophole that circumvents Congress’s intent to bar civilians from achieving automatic rates of fire. That’s because the recoil of the stock “bumps” the finger against the trigger, allowing the weapon to achieve automatic fire. Because of this technicality, bump stocks have not run afoul of the law.

ATF initially concluded that it could not ban these devices through regulation in 2008. And after the 2012 shooting at a movie theater in Aurora, Colo., ATF further explained in a 2013 letter to Congress that it could not take unilateral action because “stocks of this type are not subject to the provisions of federal firearms statutes.” In addition, internal ATF documents made public through Freedom of Information Act requests by Giffords Law Center and Democracy Forward show that the agency had reiterated its lack of authority to ban bump stocks unilaterally and that it had approved similar devices as recently as April 2017 — under the Trump administration.

In March 2018, the Justice Department did an about-face, claiming that bump stocks do, in fact, fall under the legal definition of a machine gun and therefore can be banned through regulations. The administration’s position hinges on a dubious analysis claiming that bumping the trigger is not the same as pulling it.

Feinstein goes on to say that banning bump stocks by executive fiat opens it to legal challenge and that the Final Rule provides a roadmap for the "gun lobby" to do just that. This is not to say that Feinstein is pro-bump stock. Far from it. She wants them banned along with "trigger cranks" but says it should be done by Congress. Part of her rationale is that if it is done by Congress a future President can't change his or her mind about bump stocks and ditch the ban. The other part of her rationale is the feeling that President Trump and the BATFE with the ban are intruding upon a Congressional prerogative.

The bump stock ban is already being challenged in District Court in Guedes et al v. BATFE et al. Gun Owners of America have also been promising a lawsuit which as of this afternoon still hasn't been filed.

Bumpstock Ban, Part II

The Bureau of Alcohol, Tobacco, Firearms, and Explosives in response to the announcement by Acting Attorney General Matthew Whitaker that the final rule banning bump fire stocks has more detail as well as "instructions" for owners of these firearms accessories. You have to wonder if the release of this final rule was delayed until after Attorney General Jeff Sessions was fired and a more compliant acting AG was in place.

First, the final 157 page rule can be found here. It will officially become final when it is published in the Federal Register. The rule goes into effect 90 days from when it is published in the Federal Register.

Second, the BATFE has published instructions on how to destroy your bump fire stock. They also have links to diagrams for a number of named bump fire stocks which are below.

• Slide Fire Solutions Bump Stock
• Bump Fire Systems AR and AK Bump Fire Stocks
• Michael Wolff Bump Stock (IQ #304609)
• Phoenix Technologies Bump Stock (IQ #76598)
• Vincent Troncoso Bump Fire Device (IQ #302683)
• Michael Smith Bump Stock (IQ #76715)
• Paul Ruble 10/22 Bump Fire Stock (IQ #303826)
• Slide Fire Solutions AR Pistol Bump Fire Device (IQ #304071)
• JT Grip Solutions Bump Fire Grips (IQ #303318)
• Saigatechusa/Ramlake, LLC AK Bump Stock Device (IQ #76600)
• FosTech Outdoors Bumpski AK Bump Stock (IQ #77918)
• Michael Foeller AK Bump Stock (IQ #72350)
• James Erskine Hailstorm Bump Stock (IQ #78025)
• David Compton Bump Fire Stock (IQ #74544)
• Mike DeWitt Chuckbuster Bump Fire Grip (IQ #303195)

Third, the other opinion is turn in your bump fire stock at your local BATFE office. They "advise" to call ahead. Also, while they don't mention it, make sure you have your dog in a safe, undisclosed location.

Fourth, and this is not mentioned by BATFE, you can support the lawsuits that have or will be filed seeking to have this overturned. I will cover some of them in the next post.

Bumpstock Ban, Part I

When I wrote a blog post yesterday entitled BOHICA I didn't think it would come first from what ostensibly is our own side. I was wrong. Acting Attorney General Matthew Whitaker announced today that the final rule declaring that bump fire stocks are "machine guns". Below is his announcement:

Today, Acting Attorney General Matthew Whitaker announced that the Department of Justice has amended the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), clarifying that bump stocks fall within the definition of “machinegun” under federal law, as such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.

Acting Attorney General Whitaker made the following statement:

“President Donald Trump is a law and order president, who has signed into law millions of dollars in funding for law enforcement officers in our schools, and under his strong leadership, the Department of Justice has prosecuted more gun criminals than ever before as we target violent criminals. We are faithfully following President Trump’s leadership by making clear that bump stocks, which turn semiautomatics into machine guns, are illegal, and we will continue to take illegal guns off of our streets.”

On February 20, 2018, President Trump issued a memorandum instructing the Attorney General “to dedicate all available resources to… propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.” In response to that direction the Department reviewed more than 186,000 public comments and made the decision to make clear that the term “machinegun” as used in the National Firearms Act (NFA), as amended, and Gun Control Act (GCA), as amended, includes all bump-stock-type devices that harness recoil energy to facilitate the continuous operation of a semiautomatic firearm after a single pull of the trigger.

This final rule amends the regulatory definition of “machinegun” in Title 27, Code of Federal Regulations (CFR), sections 447.11, 478.11, and 479.11. The final rule amends the regulatory text by adding the following language: “The term ‘machine gun’ includes bump-stock devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.” Furthermore, the final rule defines “automatically” and “single function of the trigger” as those terms are used in the statutory definition of machinegun. Specifically,

• “automatically” as it modifies “shoots, is designed to shoot, or can be readily restored to shoot,” means functioning as a result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through the single function of the trigger;
• “single function of the trigger” means single pull of the trigger and analogous motions.

Because the final rule clarifies that bump-stock-type devices are machineguns, the devices fall within the purview of the NFA and are subject to the restrictions of 18 U.S.C. 922(o). As a result, persons in possession of bump-stock-type devices must divest themselves of the devices before the effective date of the final rule. A current possessor may destroy the device or abandon it at the nearest ATF office, but no compensation will be provided for the device. Any method of destruction must render the device incapable of being readily restored to its intended function.

I don't own a bumpstock nor do I know anyone personally that does. However, the danger in this rule is the precedent it sets. This can and probably will be expanded in the future to include any item that accelerates or makes a semi-automatic firearm easier to shoot. Things like enhanced triggers, JP Enterprise springs, or even a trigger job. This final rule perverts the black letter law of the National Firearms Act as well as the Congressional intent.

932 Pages Is Hard To Ignore

Alinsky's Rule No. 4 states "Make the enemy live up to its own book of rules." Part of the rule book for administrative rulemaking is that each and every comment must be examined. It is easy to skim over repetitive comments stating "teh bump stock is bad" or, conversely, "you are wrong, you child-killing gun grabbers." It is much harder to ignore a 923 legal document with 35 exhibits written by firearms law attorneys.

That is what the Firearm Policy Coalition and the Firearms Policy Foundation dumped into the laps of the bureaucrats at DOJ and BATFE. The bureaucrats at DOJ thought their 50 pages of legal sophistry as to why bump fire stocks are illegal would scare people away. It didn't. The FPC/FPF comment was written by attorneys Joshua Prince and Adam Kraut of the Firearms Industry Consulting Group. They know a thing or two about the NFA and firearms law in general.

The key thing about such a long document such as the comment submitted by FPC/FPF is that each and every point will have to be considered and the rule will have to address them. Moreover, it sets up the playing field for the anticipated court challenge to the probably bump stock ban rule. Only things that were brought up during the comment period can be considered by the courts. No new objections can be made.

Below is the news release from the Firearms Policy Coalition and the Firearms Policy Foundation detailing their 923 page comment. As a reminder, doing stuff like this isn't cheap and proponents of gun rights don't have our own pet billionaire to fund us unlike the corporate gun ban lobby. You might want to send a few bucks to the FPF- tax deductible, you know - to help in the effort.

WASHINGTON, DC (June 27, 2018) — Firearms Policy Coalition (FPC) and Firearms Policy Foundation (FPF) have announced that their extensive, 923-page opposition comment was filed with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regarding the agency’s proposed rulemaking to ban “bump-stock” devices. The FPC Comment and its 35 exhibits can be viewed online in their entirety at https://www.firearmspolicy.org/fpc-fpf-opposition-atf-bump-stock-ban.

The FPC Comment in opposition was filed on the groups’ behalf by attorneys Joshua Prince and Adam Kraut of Firearms Industry Consulting Group (FICG) after President Trump directed Attorney General Jeff Sessions to use executive actions to unlawfully and unconstitutionally expand the scope of statutes to force the dispossession and destruction of legally-acquired property--without just compensation--and subject possibly more than 500,000 Americans to severe federal criminal penalties. FICG attorney Adam Kraut produced a video (Exhibit 28) with Patton Media and Consulting to show how a bump-fire-type device actually works when it is installed on a firearm.

“It is beyond outrageous that ATF has purposely misled the public on the function of bump-stock-devices,” said FICG Chief Counsel Joshua Prince. “Even setting aside the constitutional concerns, there are a plethora of issues that preclude ATF from moving forward with its bump-stock proposal. ATF is unlawfully attempting to usurp the Congress’ power by modifying a definition codified in the tax code by Congress and is attempting to retroactively apply this definition, which is precluded by federal tax laws designed to prevent this kind of action by the Government.”

“Perhaps more frightening than the text of this unlawful executive action is the fact that the Trump Administration is expressly saying that not only can the ATF re-write Congress’ statutes to mean whatever they prefer, but that the Second Amendment doesn’t protect conduct with common semi-automatic firearms and parts, let alone devices like machineguns,” commented FPC President and FPF Chairman Brandon Combs. “That should send chills down the spines of American gun owners.”

“Our important opposition is not only a substantial addition to the rulemaking record, but a warning shot across the ATF’s bow. If the ATF proceeds with this unlawful and unconstitutional proposal, our attorneys have been instructed to explore every possible legal remedy, including filing a federal lawsuit and seeking an injunction. We would relish the opportunity to defend the Constitution and law-abiding American people against the Trump Administration’s patently anti-gun arguments in a court of law,” Combs concluded.

BACKGROUND

In ten letter rulings between 2008 and 2017, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) concluded that bump-stocks and some similar devices did not qualify as “machineguns” because they did not “automatically” shoot more than one shot with a single pull of the trigger.

On October 1, 2017, a terrorist used firearms in a premeditated attack on attendees of an outdoor concert in Las Vegas, Nevada, killing 58 people and injuring more.

On December 26, 2017, ATF published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register regarding the “Application of the Definition of Machinegun to ‘Bump Fire’ Stocks and Other Similar Devices” as an initial step in the process of substantively changing through fiat regulation the statutory definition of “machinegun” with the intent to ban bump-stock-type devices they previously ruled were legal to acquire, possess, and use.

On January 25, 2018, Firearms Policy Coalition (FPC) submitted comments responding to the ATF – an agency under the Department of Justice – Advance Notice of Proposed Rulemaking (ANPRM) in opposition to the “Application of the Definition of Machinegun to “Bump Fire” Stocks and Other Similar Devices.”

On February 20, 2018, President Donald Trump issued a memorandum to Attorney General Sessions directing the Department of Justice to initiate a regulatory action to ban “bump fire” stocks and similar devices. (83 Fed. Reg. 7949.)

On March 29, 2018, the ATF published its Notice of Proposed Rulemaking regarding a proposed ban on “Bump-Stock-Type Devices” in the Federal Register. (83 Fed. Reg. 13442.)

On June 19, 2018, attorneys at Firearms Industry Consulting Group submitted over 900 pages of analysis and documents, along with multiple video exhibits, on behalf of FPC and FPF (the “FPC Opposition”) in opposition to the ATF’s proposed rulemaking. In the FPC Opposition, and by separate letter to ATF Acting Director Thomas E. Brandon, FIGG (on behalf of FPC and FPF) demanded a hearing before any final rulemaking action pursuant to the right codified under 18 U.S.C. § 926(b).

The comment period for ATF rulemaking docket no. 2017R-22 will close on June 27, 2018, at midnight Eastern Daylight Time.

SUMMARY OF OPPOSITION ARGUMENTS

• ATF’s Proposed Rulemaking (docket no. 2017R-22) is procedurally flawed and violates the Administrative Procedure Act (APA)
• ATF’s proposed rule violates the Constitution in numerous ways, including:
  • I – Separation of Powers
  • I – Ex Post Facto Clause
  • Fundamental, individual right to keep and bear arms protected under the Second Amendment
  • Rights to due process, fair notice, and just compensation for the taking of property protected under the Fifth Amendment
• ATF’s proposed rule exceeds its statutory authority
• ATF’s proposed rule is arbitrary and capricious
• ATF’s proposed rule is unconstitutionally vague
• ATF failed to consider viable and precedential alternatives
• ATF’s proposed rule is not supported by policy considerations
• ATF’s proposed rule “should be withdrawn and summarily discarded, or, in the alternative, ATF should elect Alternative 1 and abandon the proposed rulemaking in its entirety.”

RELATED NEWS RELEASES

Oct. 6, 2017: Firearms Policy Coalition Repudiates Proposed Bans on Semi-Automatic Firearms and Accessories, Including “Bump Fire” Stocks - http://bit.ly/fpc-2017-10-6-bumpstocks

Jan. 25, 2018: FPC Says ATF ‘Bump Stock’ Regulation Proposal is “Illegal” - http://bit.ly/fpc-2018-1-25-bumpstock-ban-illegal

Feb. 20, 2018: FPC Calls President Trump’s ‘Bump Stock’ Ban “Lawless” - http://bit.ly/fpc-2018-2-20-trump-ban-lawless

Feb. 26, 2018: President Trump Says He Will ‘Write Out’ Bump Stocks Without Congress; Two Second Amendment Groups Initiate Legal Action to Oppose Ban - http://bit.ly/fpc-2018-2-26-trump-bumpstocks

LIST OF DOCUMENTS AND EXHIBITS FILED

All documents and videos listed below are available online at https://www.firearmspolicy.org/fpc-fpf-opposition-atf-bump-stock-ban.

FPC and FPF's Comments in Opposition to Proposed Rule ATF 2017R-22

Exhibit 1 - FICG Expedited FOIA request dated March 30, 2018

Exhibit 2 - LVMPD Preliminary Investigative Report, January 18, 2018

Exhibit 3 - Video: Iraqveteran8888, Worlds Fastest Shooter vs Bump Fire! – Guns Reviews, YouTube, October 13, 2014

Exhibit 4 - Video: Miculek.com, AR-15 5 shots in 1 second with fastest shooter ever, Jerry Miculek (Shoot Fast!), YouTube, June 20, 2013

Exhibit 5 - Carl Bussjaeger, [Update] Bumbling Machinations on Bump Stocks?, April 2, 2018 and [Updated] Bump-fire Rule: “Comments Not Accepted”, March 30, 2018

Exhibit 6 - Motion in Limine, United States v. Friesen, CR-08-041-L (W.D. Okla. Mar. 19, 2009)

Exhibit 7 - John Bresnahan and Seung Min Kim, Attorney General Eric Holder held in contempt of Congress, June 28, 2012

Exhibit 8 - Testimony of Gary Schaible, United States v. Rodman, et al., CR-10-01047-PHX-ROS

Exhibit 9 - Senator Diane Feinstein, Feinstein: Congress Shouldn’t Pass the Buck on Bump-Fire Stocks, October 11, 2017

Exhibit 10 - ATF Determinations

Exhibit 11 - Video: Shooting Videos, Rapid manual trigger manipulation (Rubber Band Assisted), YouTube, December 14, 2006

Exhibit 12 - Video: StiThis1, AK-47 75 round drum Bumpfire!!!, YouTube, September 5, 2011

Exhibit 13 - Video: ThatGunGuy45, ‘Bump Fire’ without a bump-fire stock, courtesy of ThatGunGuy45, YouTube, October 13, 2017

Exhibit 14 - Video: M45, How to bumpfire without bumpfire stock, YouTube, October 8, 2017

Exhibit 15 - Verified Declaration of Damien Guedes

Exhibit 16 - Verified Declaration of Matthew Thompson

Exhibit 17 - Video: Vice News, Meet One Of The Analysts Who Determined That Bump Stocks Were Legal, YouTube, October 11, 2017

Exhibit 18- Video: Fastest Shooter OF ALL TIME! Jerry Miculek | Incredible Shooting Montage, DailyMotion, 2014

Exhibit 19- Gun Control Act of 1968, 82 Stat. 1235

Exhibit 20 - 26 C.F.R. § 179.120

Exhibit 21 - Joshua Prince, Violating Due Process: Convictions Based on the National Firearms Registration and Transfer Record When its ‘Files are Missing’, September 28, 2008

Exhibit 22 - Eric Larson’s testimony and exhibits of April 3, 1998, before the House Committee on Appropriations

Exhibit 23 - ATF Quarterly Roll Call Lesson Plan, July 12, 2012

Exhibit 24 - Eric M. Larson, How Firearms Registration Abuse & the “Essential Operational Mechanism” of Guns May Adversely Affect Gun Collectors, Gun Journal, March 1998

Exhibit 25 - U.S. Government’s Brief in Support of Cross Motion For Summary Judgment And In Opposition to Plaintiff’s Motion For Summary Judgment, Freedom Ordinance Mfg. Inc., v. Thomas E. Brandon, Case No. 3:16-cv-243-RLY-MPB

Exhibit 26 - Video: Molon Labe, hogan 7 m16.wmv, YouTube, October 25, 2011

Exhibit 27 - Testimony of ATF Senior Analyst Richard Vasquez in U.S. v. One Historic Arms Model54RCCS, No. 1:09-CV-00192-GET

Exhibit 28 - Video: Adam Kraut Esq. and Patton Media and Consulting, Bump Stock Analytical Video, June 14, 2018

Exhibit 29 - National Firearms Act: Hearings Before the Committee on Ways and Means, H.R. Rep. No. 9066, 73rd Cong. 2nd Sess. April 16, 18, and May 14, 15, and 16 1934

Exhibit 30 - Testimony of Police Chief J. Thomas Manger

Exhibit 31 - ProPublica, Workers’ Comp Benefits: How Much is a Limb Worth?, March 5, 2015

Exhibit 32 - Verified Declaration of former ATF Acting Chief of FTB Rick Vasquez

Exhibit 33 - Verified Declaration of Jonathan Patton of Patton Media and Consulting

Exhibit 34 - FICG’s Letter on Behalf of FPC to Acting Director Brandon

Exhibit 35 - FPC’s January 25, 2018 Letter in Opposition to ATF’s ANPRM re: “Application of the Definition of Machinegun to ‘Bump Fire’ Stocks and Other Similar Devices”

Wednesday Is The Last Day To Comment On ATF's Proposed Retroactive Ban On Bump Stocks

Tomorrow, Wednesday, June 28th at 11:59pm EDT, is the close of the comment period on the Bureau of Alcohol, Tobacco, Firearms, and Explosives proposed ban on bump fire stocks. According to the legal sophistry of the DOJ lawyers, the BATFE erred when it said bump fire stocks did not violate the National Firearms Act. Thus, if the rule is adopted, bump fire stocks will be treated as machine guns and since they were produced after the Hughes Amendment was enacted they will be destroyed without compensation.

Bump fire stocks are a novelty to me. However, more important is how this ruling could be used to expand restrictions on all semi-automatic firearms, trigger upgrades, and the list goes on. To paraphrase Pastor Martin Niemoller's quote about the Nazis, "first they came for the bump fire stocks and I did not speak out because I didn't own a bump fire stock..."

The corporate gun ban lobby has been active in the last few days trying to solicit their members to submit comments. I'm sure they'll get a lot that will ignore the law and play on emotion. While I'll have another post up in the morning about the Firearms Policy Coalition's 900+ page submission, for the time being here is a reminder from Grass Roots North Carolina.

STOP THE ‘BUMP-STOCK’ GUN BAN

The Dangerous Precedent of the ‘Bump-Stock’  ban. The law that a ‘machine gun’ is defined by one trigger pull firing multiple rounds was written by congress and signed off on by the executive branch.  But with ‘Writing It Out’ the executive branch all by its lonesome is going to magically redefine multiple trigger pulls as one so that they can call a bump-stock equipped semi-auto firearm a ‘machine gun’.   In the words of the Bureau of Alcohol, Tobacco, Firearms, and Explosives: Specifically, these devices convert an otherwise semiautomatic firearm into a machinegun by functioning as a self-acting or self-regulating mechanism that harnesses the recoil energy of the semiautomatic firearm in a manner that allows the trigger to reset and continue firing without additional physical manipulation of the trigger by the shooter. The trigger still has to be pulled for every shot, but with the word play magic, those additional trigger pulls are going to be ‘written out’ so with supposedly one trigger pull, you have a ‘Machine gun’! It’s a semi-automatic miracle!       If the required trigger pull for every shot has been ‘written out’ devices such as Bump-stocks, belt loops, rubber bands or fingers will have to be banned since these can also turn that which is ‘semi-automatic’ into something that is ‘automatic’.  But they can’t very well ban pants, rubber bands or fingers, so they will have to ban semi-automatic firearms instead.     But wait!  There’s more!     With this magical word play any gun that can fire again with just a trigger pull could also be banned as a 'machine gun', meaning revolvers or shotguns could also be eliminated. See how easy it is to ban just about everything by just changing the meaning of a few words? Nancy Pelosi [Bless her heart] openly admitted that she hoped the ‘Bump-Stock’ ban would lead to a slippery slope towards other restrictions on our freedom.   “They’re going to say, ‘You give them bump stock, it’s going to be a slippery slope.’ I certainly hope so,” Pelosi confirmed. The Left wants to cynically exploit the recent shootings for political gain, This is only round one of a coming battle to defend your Constitutional rights.

IMMEDIATE ACTION REQUIRED!

The end of the comment period is tomorrow: June 27, 2018  so you only have a short time to express your opinion on this important and far reaching issue. SUBMIT A COMMENT AGAINST THE THE SEMI-AUTO/BUMP-STOCK BAN  Click on the link provided, and use the copy/paste message provided below under ‘Deliver This Message.’https://www.regulations.gov/comment?D=ATF-2018-0002-0001 Help GRNC reload for the coming battle: The Left cannot stand it when you exercise your rights and they will stop at nothing to deprive you of them.   We desperately need money and volunteers for the upcoming battle. Please help by donating at: https://www.grnc.org/join-grnc/contribute

DELIVER THIS MESSAGE

This is in opposition to the 'bump device' ban, or any such rule.     The Executive branch of the Federal government cannot simply change the meaning of words to ‘write out’ things that are unpopular at the moment. It also cannot turn semi-automatic firearms into ‘machine guns’ with the stroke of a pen.  These firearms require multiple trigger pulls to fire.  No amount of word magic can change that fact. Attempting to do so will set a dangerous precedent with potential to put all guns on the chopping block.  That will most certainly INFRINGE on the 2nd amendment.  The Federal government has no authority to  change the meaning of words that impact the law in this matter.   Respectfully,

A Timely Reminder From The Local Gun Prohibitionists

I want to thank North Carolinians Against Gun Violence, a wholly owned subsidiary of Michael Bloomberg's Everytown, for this timely reminder.

Subject: Easy ASAP To Do: Email ATF on Bump Stocks by June 27 Comment Deadline

Jack --

The Bureau of Alcohol, Tobacco, Firearms and Explosives (aka ATF)  is again receiving comments on bump stocks. The new comment deadline is Wednesday, June 27. Simply click here to comment. .

Please take a moment to comment today. The other side has been flooding ATF with comments against the proposed regulation and we need to show public support for it.
--Becky
-----------------

On the night of October 1, 2017, a gunman opened fire from a hotel room on the 32nd floor of the Mandalay Bay hotel into the 22,000 person crowd at the Route 91 Harvest country music festival in Las Vegas, Nevada, killing 58 people and injuring more than 500. The gunman fired more than 1,100 rounds of ammunition in 11 minutes, using semi-automatic rifles modified with dangerous firearm accessories designed to dramatically accelerate the rate of gunfire, commonly known as “bump fire stocks.” These devices are intended to circumvent the restrictions on possession of fully automatic firearms in the Gun Control Act of 1968 and the National Firearms Act of 1934 by allowing an individual to modify a semiautomatic rifle in such a manner that it operates with a similar rate of fire as a fully automatic rifle, posing a substantial risk to public safety.

In the absence of immediate action by Congress, I urge ATF to finalize its proposed rule clarifying that bump fire stocks, along with other “conversion devices” that enable semiautomatic weapons to mimic automatic fire, qualify as “machine guns” under the National Firearms Act. And then Congress must act as well—to ensure that manufacturers cannot continue to endanger public safety by designing devices that imitate machine guns and subvert the law. The continued presence of these dangerous devices puts all of our communities at risk, and both Congress and ATF must take action quickly to address this threat.



North Carolinians Against Gun Violence

NCGV
http://www.ncgv.org/

While I may think bump fire stocks are a novelty and a good way to waste ammunition, I don't want them banned. My rationale is that banning them is merely a first step towards more regulation of semi-automatic firearms of all sorts. The Department of Justice's legal rationale as published is an exercise in legal sophistry and they know it. 

I would refer readers back to this post from April which features a video by Adam Kraut if you need some suggestions on how to respond to the request for comments. There is more on the comment period from Adam's Prince Law Firm blog. You can also check out this Facebook page, Americans Opposed to ATF 2017R-22, for more ideas.

I'll admit that I'm not an optimist when it comes to stopping this ban. However, getting objections on file is the key to bringing a lawsuit. Take 5-10 minutes and submit a comment. Make sure to include "ATF 2017R-22" in your comment.

Comment Period Opens On Proposed Bump Stock Ban

Adam Kraut gives a good thumbnail overview of how to respond to the BATFE proposed rulemaking in the video below. He suggests taking a shotgun approach as the more objections you can raise, the more the BATFE has to work to respond to them. Moreover, if it isn't brought up now, it can't be brought up in court later.



Here is the document released by the lawyers of the Department of Justice with their legal rationale (or bullshit, to be more honest about it) saying why they can now define bump fire stocks as machine guns. It is important to note that if this rule is enacted then all existing bump fire stocks become contraband unregistered machine guns and must be destroyed or turned into BATFE. Why? That little amendment to FOPA 1986 called the Hughes Amendment comes into play as bump fire stocks were developed, manufactured, and sold after 1986.

Here is the correct link to the comments page.

I say correct link because www.regulations.gov has two links to the proposed regulations. One is the correct link and the other says comments are closed. Remember, never attribute to malice that which can be explained by incompetence or stupidity.

So scan through the DOJ document to find areas on which to make comments. There is nothing to say you can't make multiple comments on different things. The comment period closes on June 27, 2018 at 11:59pm. So do it now while it is still fresh in your mind.

And In Your Morning News From The DOJ...

The Beltway method of releasing news that you don't want to get a lot of attention is to release it on a Friday afternoon. I'm guessing the Department of Justice under Attorney General Jeff Sessions is taking it a step further with this release regarding bump fire stocks.

From the DOJ:

FOR IMMEDIATE RELEASE

Saturday, March 10, 2018

Department of Justice Submits Notice of Proposed Regulation Banning Bump Stocks

Today the Department of Justice submitted to the Office of Management and Budget a notice of a proposed regulation to clarify that the definition of “machinegun” in the National Firearms Act and Gun Control Act includes bump stock type devices, and that federal law accordingly prohibits the possession, sale, or manufacture of such devices.

"President Trump is absolutely committed to ensuring the safety and security of every American and he has directed us to propose a regulation addressing bump stocks,” said Attorney General Jeff Sessions. “To that end, the Department of Justice has submitted to the Office of Management and Budget a notice of a proposed regulation to clarify that the National Firearms and Gun Control Act defines ‘machinegun’ to include bump stock type devices.”

This submission is a formal requirement of the regulatory review process. Once approved by the Office of Management and Budget, the Department of Justice will seek to publish this notice as expeditiously as possible.

I don't have a need, want, desire, or love for bump fire stocks. I do, however, believe in the rule of law. 26 USC Chapter 53 § 5845 (b) defines a machinegun as:

Machinegun. The term 'machinegun' means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

Arbitrarily saying that a bump fire stock is the same as a machinegun flies in the face of both the black letter law and in the face of numerous BATFE regulatory rulings. It makes a mockery of the rule of law and should be condemned as such. If the DOJ and the Trump Administration want to ban bump fire stocks, they should, as I suggested in my own comment on the Advanced Notice of Proposed Rulemaking, submit a bill to Congress to add them to the NFA and GCA 68.

In the meantime, I plan to send a few buck to the Firearms Policy Coalition as they have already hired attorneys Adam Kraut and Joshua Prince to submit their comments and fight this in court. By the way, donations to fight this are tax-deductible.

Firearms Policy Coalition Is Preparing For Litigation On Bump Stocks

President Donald Trump, the black letter law notwithstanding, told the nation's governors on Monday that he is "writing out" bump fire stocks.

“Bump stocks, we are writing that out. I am writing that out,” he said, addressing a group of state governors at the White House. “I don’t care if Congress does it or not, I’m writing it out myself."

The president’s comments come after the Feb. 14 shooting at a Florida high school that left 17 students and staff dead. Last week, he directed the Department of Justice to create regulations that ban bump stocks.

Trump also said bump stocks should be put into the same category as certain firearms, making it “tough” to get them.

“You do a rule, have to wait 90 days,” he said. “That’s sort of what’s happening with bump stocks. It’s gone, don’t worry about it. It’s gone, essentially gone, because we are going to make it so tough, you’re not going to be able to get them. Nobody’s going to want them anyway.”

Now yesterday, Attorney General Jeff Sessions said he thinks the Department of Justice has the legal authority to prohibit bump fire stocks.

"We believe in that, and we have had to deal with previous [Bureau of Alcohol, Tobacco, Firearms and Explosives] ATF legal opinions, but our top people in the Department of Justice have believed for some time that we can, through regulatory process, not allow the bump stock to convert a weapon from a semi-automatic to a fully automatic," Sessions told state attorneys general, according to Reuters.

ATF has previously said that it does not have the authority to regulate bump stocks, which increase the firing rate of semi-automatic rifles.

For once, I think BATFE actually got it right when they said they don't have the authority to regulated bump fire stocks. So does the Firearms Policy Coalition.

They have retained attorneys Joshua Prince and Adam Kraut of the Firearms Industry Consulting Group to submit their response when the rulemaking is announced and to help with any litigation related to the rulemaking. They have promised to go to court if any rule banning bump fire stocks is adopted without any Congressional change in the law.

From their release sent out Monday evening:

WASHINGTON, D.C. (February 26, 2018) — In a press conference today, President Donald Trump said that, “I don’t care of Congress does it or not, I’m writing [so-called ‘bump stocks’] out myself.” In response to these troubling statements, constitutional rights advocacy organizations Firearms Policy Coalition (FPC) and Firearms Policy Foundation (FPF) have announced that they have retained attorneys Joshua Prince and Adam Kraut of the Pennsylvania-based Firearms Industry Consulting Group, a division of Civil Rights Defense Firm, P.C., to submit their legal opposition to any rulemaking and begin preparing for litigation. Last month, FPC submitted a legal letter of opposition to the Bureau of Alcohol, Tobacco, Firearms and Explosives’ advanced noticed of proposed rulemaking on the “Application of the Definition of Machinegun to Bump Fire Stocks and Other Similar Devices.” In its comments, FPC explained that the “DOJ and BATFE clearly lack the statutory authority to re-define the targeted devices as ‘machineguns’,” and that these ATF-approved and legally-possessed devices could not be regulated firearms under the statutes. FPC and FPF oppose restrictions on the acquisition, possession, carry, transportation, and use of semi-automatic firearms, ammunition, and firearm parts and accessories by law-abiding people.
 “We will use every resource and remedy available to us in our ongoing defense of the Constitution, the rights it protects, and millions of law-abiding American people” said FPC President Brandon Combs. “While we would prefer to block any executive action or rulemaking that would ban currently-legal firearms parts before it becomes law, we would not hesitate to file a federal lawsuit to protect the rights and legal personal property of gun owners if that’s what it takes.” Those who wish to support FPC and FPF’s efforts to oppose executive branch gun control and support legal action a can make tax-deductible donation at www.defendgunparts.com. Individuals can become a member of FPC at www.firearmspolicy.org/join. Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to protect and defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms.
 Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to defend the Constitution of the United States and the People’s rights, privileges and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms. Firearms Industry Consulting Group (www.firearmsindustryconsultinggroup.com) represents individuals, organizations, firearms licensees, and others located across the United States in all matters relating to firearms and ATF compliance. FIGG is a division of Civil Rights Defense Firm, P.C. 

As an aside, the Adam Kraut mentioned in the release is the same Adam Kraut running for the NRA Board of Directors and the same Adam Kraut I have wholeheartedly endorsed. 

The Establishment Has Spoken

The Wall Street Journal ran an unsigned editorial yesterday regarding background checks for firearms purchases. They noted the Florida school murderer was a known threat. He had been reported to the FBI, the local sheriff's department had been called multiple times, and the school had a warning out asking to be notified if he showed up with a backpack.

The editorial then advocates for the passage of Sen. John Cornyn's Fix NICS Act of 2017. They say this could be done quickly if only, in my words, those ideologues in the House would decouple national concealed carry reciprocity from their version of Fix NICS. While they are at they could throw in a Trojan Horse ban on bump fire stocks.

From the editorial:

The bill would tighten an imperfect background-check system and is supported by the National Rifle Association, police associations and the White House. The House passed the legislation last year, but it also added a provision requiring reciprocity for owners of concealed firearm permits across state lines. Democrats oppose the reciprocity provision, which can’t pass the Senate.

Republicans would be wise to let that reciprocity provision die and send a clean Fix-NICS bill to the Senate. The House can throw in a ban on so-called bump stocks, which let an AR-15 rifle fire more rapidly. That also has bipartisan support, and President Trump on Tuesday directed the Justice Department to propose a regulation banning bump stocks.

These ideas might not have stopped (killer's name redacted), but then neither would the oft-proposed ban on AR-15s. He could as easily have bought handguns, which is how (killer's name redacted) killed 32 people at Virginia Tech in 2007. But one consequence of Parkland should be a debate on how American society can deny the dangerous mentally ill access to guns of any kind. That will require a rethinking of privacy laws and state mental-health statutes.

Democrats keep saying they merely want “common sense” gun laws, not a ban, and the Cornyn bill is a test of their sincerity.

So let me get this straight so I can understand the thinking of the Establishment. If the Democrats "compromise" and support a bill that gives them virtually everything they want short of a ban on semi-automatic rifles and universal background checks, it is a "test of their sincerity". However, this also implies that if the Republicans insist on fulfilling their promise to the American voters on national reciprocity they will be considered obstructionists.

What a masterful example of Establishment doublespeak!

The proper response by us gun rights demanding proles is not only no but hell no. Passing Fix NICS with a bump fire ban but no carry reciprocity is no compromise. It should be rightfully seen for what it is:  a willful surrender by spineless Republicans who only give a shit about gun rights when it comes to getting our votes at election time.

Sorry Donald But This Is Bovine Excrement

President Donald Trump released a Presidential Memorandum today directing Attorney General Jeff Sessions to complete the review of bump fire stocks and to promulgate a rule banning them. The problem with this Presidential Memorandum is that bump fire stocks as exemplified by the SlideFire Stock do not meet the definition of machine guns under the National Firearms Act and applicable BATFE rulings. That was why Rich Vasquez when he was charged with analyzing the SlideFire Stock found that it was not a machine gun nor did it convert a semi-automatic firearm into one. I made this very point in my own comment under the Advanced Notice of Proposed Rulemaking.

If President Trump wishes to change the definition of a machine gun under the National Firearms Act or if he wishes to pass a bill banning bump fire stocks, then he should ask Congress to pass such a bill. Directing the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms, and Explosives to make such a change to the existing rules governing bump fire stocks ignores the rule of law despite what he might say in this Presidential Memorandum.

You can read the full Presidential Memorandum below:

After the deadly mass murder in Las Vegas, Nevada, on October 1, 2017, I asked my Administration to fully review how the Bureau of Alcohol, Tobacco, Firearms and Explosives regulates bump fire stocks and similar devices.

Although the Obama Administration repeatedly concluded that particular bump stock type devices were lawful to purchase and possess, I sought further clarification of the law restricting fully automatic machineguns.

Accordingly, following established legal protocols, the Department of Justice started the process of promulgating a Federal regulation interpreting the definition of “machinegun” under Federal law to clarify whether certain bump stock type devices should be illegal. The Advanced Notice of Proposed Rulemaking was published in the Federal Register on December 26, 2017. Public comment concluded on January 25, 2018, with the Department of Justice receiving over 100,000 comments.

Today, I am directing the Department of Justice to dedicate all available resources to complete the review of the comments received, and, as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.

Although I desire swift and decisive action, I remain committed to the rule of law and to the procedures the law prescribes. Doing this the right way will ensure that the resulting regulation is workable and effective and leaves no loopholes for criminals to exploit. I would ask that you keep me regularly apprised of your progress.

You are authorized and directed to publish this memorandum in the Federal Register.

DONALD J. TRUMP

If Donald Trump has any desire to have a second term, pissing off the gun rights community which provided his margin of victory in battleground states is a damn poor way to go about it.

Firearms Policy Coalition Promises Cost Will Be High For BATFE If They Ban Bump Stocks

Last night at midnight EST, the comment period on the BATFE's Advanced Notice of Proposed Rulemaking closed. My comment was submitted last Saturday so that I wouldn't forget it in all the hub-bub of the SHOT Show.

The Firearms Policy Coalition submitted their comment yesterday (on time). Their release below makes some very good points especially on the costs of implementing such a rule. It is important to bear in mind that if BATFE were to create a ruling banning bump fire or slide fire stocks, they would be making it up out of whole cloth. In other words, they would be assuming extra-constitutional powers that have no basis in either legislation or the rule of law.

Furthermore, there is the cost issue. There will be millions spent on enforcing an illegal law as well as untold millions on litigation. The Firearms Policy Coalition is upfront in saying that they will go to Federal court if the BATFE does create a regulation banning or regulating bump fire stocks. That said, I hope that cooler heads will prevail and any further moves towards a new regulation die in infancy.

From the FPC:

WASHINGTON, D.C. (January 25, 2018) — Today, civil rights advocacy organization Firearms Policy Coalition (FPC) submitted formal comments to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) regarding a regulatory proposal that would apply the definition of ‘machinegun’ to so-called “bump fire stocks” and countless other devices. In a letter sent by FPC President Brandon Combs, the group called the proposal “troubling” and said that it “raises serious constitutional concerns, including the violation of the separation of powers.”

“The DOJ and BATFE clearly lack the statutory authority to re-define the targeted devices as ‘machineguns.’” But the gun rights group said that, if the government does re-classify so-called “bump stocks” and other devices to be “machineguns” under federal law, they would file a federal lawsuit that “would provide an excellent vehicle for the Supreme Court to re-visit and eliminate the made-up judicial construct of agency deference”—something many Supreme Court justices have signaled as an issue they may revisit soon.

FPC also said that the proposed ban would come at a high price. “These costs would necessarily include likely millions of dollars in BATFE implementation and enforcement costs, in addition to potentially millions of dollars in fending off the inevitable litigation arising from the serious constitutional and statutory violations engendered by this regulatory process,” FPC argued. “Moreover, American taxpayers would also likely be stuck with the bill for the plaintiffs’ attorneys fees and costs should the government fail in attempting to defend this illegal and unconstitutional action.”

After the October 1, 2017, mass shooting in Las Vegas, FPC released a statement ( http://bit.ly/fpc-las-vegas ) saying that, even “in troubled and troubling times like these, we are honor-bound to stand united in defense of fundamental, individual liberties, in all cases, and in spite of the incalculable grief we feel for the victims of Las Vegas as fellow human beings.”

In a subsequent statement ( http://bit.ly/fpc-2017-10-6 ) FPC repudiated proposed bans on semi-automatic firearms and accessories, including “bump fire” stocks. “All unconstitutional laws are unjust, illegitimate, and offensive to the rule of law—even if they are enacted in response to a very real tragedy. FPC opposes all restrictions on the acquisition, possession, carry, and use of common, semi-automatic firearms, ammunition, and accessories by law-abiding people.”

Later in October, California Attorney General Xavier Becerra issued a news release declaring “bump stock” devices to be “multiburst trigger activators” and “illegal in California.” But FPC responded days later ( http://bit.ly/fpc-becerra-illegal-bump-stocks ) and said that it was Becerra’s statements that were “disingenuous at best and probably illegal.” Said FPC President Brandon Combs at the time, “Not only is Attorney General Becerra’s so-called ‘news release’ inaccurate and misleading, it is almost certainly an illegal underground regulation.”