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.”

Comment On Proposed Rulemaking Regarding Bump Fire Stocks

I submitted my comment to the BATFE today regarding Docket Number 2017R-22 which is the Advanced Notice of Proposed Rulemaking regarding treating bump fire stocks as "machine guns". My full comment is below and you are free to cut and paste whatever you want from it.

I did try to answer the questions that they posed for consumers before I said the way the law is currently written does not allow them to classify bump fire stocks as machine guns.

Docket No. 2017R-22
RIN 1140–AA52
Bureau of Alcohol, Tobacco, Firearms, and Explosives
Comment on Advanced Notice of Proposed Rulemaking

First, to answer the questions posed by the ANPRM:

Q. 21: a) I have never seen bump fire stock devices for sale in gun stores. This may be a factor of the size or type of the gun store that I patronize. b) I have seen one bump fire stock device for sale at the two most recent gun shows that I attended. It was for sale by a private individual. c) The most common place for these devices to be sold is online directly from the manufacturer.

Q. 22: The price range of the bump fire stock devices online is between $150 and $300. I was told anecdotally by a vendor at the last gun show I attended that the one bump fire stock that I had seen for sale was being sold for $1,200.

Q. 23: The one person I know who does own a bump fire stock is a wheel-chair bound paraplegic who installed it on a semi-automatic shotgun for self-defense in the home. As to the claims of the manufacturers, that I cannot answer as I’m not aware of what they state is the intended purpose for a bump fire stock device.

Second, I would like to respond as to whether a bump fire stock device would fall into the statutory definition of a machine gun as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968.

Per the NFA Handbook, a machine gun is “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 machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.” This was the definition used by the Firearms Technology Division when it examined the Slide Fire bump stock. As Richard Vasquez, then the ATF’s Senior Technical Expert, who conducted the examination noted the Slide Fire stock was “not designed to shoot with a single function of the trigger.” Designed is the key word. He went on to say:

The Slide Fire does not fire automatically with a single pull/function of the trigger. It is designed to reciprocate back and forth from the inertia of the fired cartridge. When firing a weapon with a Slide Fire, the trigger finger sits on a shelf and the trigger is pulled into the trigger finger. Once the rifle fires the weapon, due to the push and pull action of the stock and rifle, the rifle will reciprocate sufficiently to recock and reset the trigger. It then reciprocates forward and the freshly cocked weapon fires again when the trigger strikes the finger on its forward travel.

ATF Ruling 2006-2 sought to expand the definition of what constitutes a “machine gun”. It equated one pull of the trigger with a single function of the trigger. This was based upon BATFE’s reading of the legislative history of the National Firearms Act. However, even that definition would not apply to bump fire stocks such as the one from Slide Fire Solutions. That is because it doesn’t rely on springs, blocks, rods, etc. which “result in a weapon that shoots more than one shot, without manual reloading, by a single pull of the trigger” and thus is a machine gun.

Third, to base any new rule or law upon a single outlying event such as that which happened in the Mandelay Bay shootings in Las Vegas results in bad law and bad policy. This will also bring into existence the law of unintended consequences. If one reads the proposed laws before Congress that seek to outlaw bump fire stocks in a knee-jerk reaction to the shootings, it is clear that a broad reading would include any trigger job, lighter buffer spring, and all after-market triggers. A rough or heavy stock trigger is more likely to cause a shot to go astray and to cause serious bodily injury or death than a replacement.

Finally, it is not the job of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to use regulation to change the meaning of the law. If Congress wants to change the definition of a machine gun, they should pass such a law. They should not pass the buck to the BATFE due to their own inability to agree on new legislation. Any proposed or anticipated rulemaking should be ended until such time as Congress changes the law.

Reclassification Of Bump Stocks By BATFE - Comments Due By January 25th

As many already know, the Bureau of Alcohol, Tobacco, Firearms and Explosives anticipates opening a Notice of Proposed Rulemaking with regard to bump fire stocks to clarify whether or not they meet the definition of a machine gun under the National Firearms Act of 1934 and the Gun Control Act of 1968. Before they release any proposed rule, they are seeking comments from manufacturers, retailers, and consumers. These must be received by midnight EST on January 25, 2018.

The Advanced Notice of Proposed Rulemaking with the questions to be answered is here. All comments must include this identification number - 2017R-22. Comments can be submitted online, by fax, or by US Mail. So far, 2,309 comments have been received. Here is the link to submit them online. It also allows you to upload a document.

These are the questions that they have for consumers:

Consumers

21. In your experience, where have you seen these devices for sale and which of these has been the most common outlet from which consumers have purchased these devices (e.g., brick and mortar retail stores; online vendors; gun shows or similar events; or private sales between individuals)?

22. Based on your experience or observations, what is (or has been) the price range for these devices?

23. For what purposes are the bump stock devices used or advertised?

 Gun law attorney Adam Kraut had these suggestions for responding to the ANPRM. Adam has more on the notice here.

Comments vary in form, length, and specificity. However, there are some things that a person submitting a comment will want to consider. Specificity is key. Providing a basis for the support or opposition to a proposed rule is crucial. Citing to studies or other evidence-based information is useful to show the agency why or why not a proposed rule is useful. In the instance of an ANPRM, responding to the specific questions posed by the agency is a particularly good strategy (not to say a commenter could not and should not go broader in their response). Regulations.gov has some more tips.

As important as comment “dos” are, there is one comment “don’t” that should be avoided: the Form Letter. As comment periods are not a measure of “popularity”, flooding the agency with form letters do not serve a useful purpose in the rulemaking process. A comment that is well reasoned is a much better avenue to pursue and not very difficult.

David Codrea has his take on the notice of rulemaking here.

The danger in this anticipated rulemaking is the same as it is with the proposed bills banning bump stocks before Congress:  where does it stop? With the Slidefire Bump Stock or will it go further to mean any modification that could increase the rate of fire of a semi-automatic firearm? Because of this, it is important that we comment.

While it might feel good to tell the BATFE to just f*#k off, go away, and mind the letter of the law, that will get us nowhere. It will be expressly ignored as it includes profanity. I think Adam's approach to address some part of the questions asked is a good one. These cannot be ignored as readily. I think the key thing is to kill the attempt to issue a rule before it gets off the ground. That is better than having to respond to an actual proposed rule which is more likely to be adopted.