Posted on 09/13/2020 4:28:02 AM PDT by marktwain
U.S.A. –-(AmmoLand.com)- Bump stocks have faded from the headlines. Most in the firearms community have been outraged that a federal administrative agency could make such a radical change in the law, as to ban items the agency previously ruled were perfectly legal, without any action by Congress or the President.
On March 26 of 2018, the BATFE reversed its previous rulings on bump stocks and issued a rule change that bump stocks would be considered automatic firearms. Over half a million bump stocks had been legally sold and owned. The new rule did not allow for grandfathering of existing stocks, or for compensation for the devices.
In the Tenth Circuit, Clark Aposhian, of Salt Lake City, Utah, filed suit in the United States District Court for the District of Utah, claiming the BATFE did not have the authority to change a law which had been made by Congress, and which they had been upholding for decades. The suit was backed by the New Civil Liberties Alliance (NCLA). The NCLA frames the case this way:
May a federal agency rewrite a federal statute? May that rewrite turn otherwise innocent Americans into criminals? Those questions are what this case is about.
The case was filed on 16 January 2019. On 15 March 2019, the Circuit court denied the motion for a preliminary injunction. The motion was appealed to the Tenth Circuit.
The three-judge panel issued a split decision on 7 May 2020, against Aposian.
Aposian petitioned for a rehearing of the case by the Tenth Circuit, en banc. Aposian made the case the Tenth Circuit was violating their own previous precedent.
On 4 September 2020, the Tenth Circuit agreed to re-hear the case, en banc.
(Excerpt) Read more at ammoland.com ...
In this case, the BATFE reversed their previous rulings 180 degrees. The DOJ stipulated a number of things at the beginning of the case, such as they were not relying on the Chevron ruling. The en banc rehearing will address whether the DOJ is allowed to stipulate those things.
Indeed. Either the law is solid ground or it is null and void. Agency rules are not laws and must be completely in agreement with the law else it too is unenforceable.
Another example is the definition of a firearm, and the DOJ has apparently recognized the shortcomings of prosecuting some AR15 based cases as neither upper nor lower receivers meet the actual definition of a firearm.... So, can a decades long standard that the lower is the firearm actually be valid if the legal definition is not met?
Indeed. Either the law is solid ground or it is null and void. Agency rules are not laws and must be completely in agreement with the law else it too is unenforceable.
Another example is the definition of a firearm, and the DOJ has apparently recognized the shortcomings of prosecuting some AR15 based cases as neither upper nor lower receivers meet the actual definition of a firearm.... So, can a decades long standard that the lower is the firearm actually be valid if the legal definition is not met?
In a second term, Trump needs to reward his RKBA base by actually making positive progress on rights restoration. He often speaks of 2A positively, but nothing has notably _improved_ on his authority. He did speak against bump-stocks, and allowed/encouraged BATFE to ban what was explicitly legal. 4 years ago there was much hope he would at minimum get suppressors fully legalized (and that’s a pretty minor step, being just auditory safety devices).
Obama, albeit grudgingly in a legislative trap, sign national park carry legalization - a meaningful step in the right direction.
Er, the ATF has generally ruled that ‘the part that the magazine locks into or is held by’ is the ‘firearm.’ On the AR, that’s the lower receiver. On the FAL, it’s the *upper* receiver. On the AK, it’s the receiver period. So they’ve actually been pretty consistent on that.
Now, the ATF has screwed up a lot of other things; one example is their ongoing contention that shotguns inherently cannot have certain parts. Not that the parts are illegal or regulated or anything, just that they simply don’t have them when you can clearly demonstrate that they do.
Haven’t heard of that being finalized.
Exemptions can be had thru an unspecified request process, but seems the general ban remains.
And while certainly a good step, it’s still little to most (who don’t live near Corps land), and doesn’t seem Trump-initiated.
I want to see something like EOs directing BATFE to rule in favor of 2A where ambiguities in laws exist (dumping bump stock ban as a result), accelerate NFA processing to instant electronic (not >6 month paperwork), and direct/fund CMP to supply ALL available military surplus to public with consequences of forcing overturn of 922(o).
Er, not so fast. Regulations cannot stand alone. They must square with the statute.
A quick internet search will yeild both the law and the recent cas4s wherein charges were dropped apparently to keep from setting precedent.
Didn’t say they were always correct, just consistent. They did change their mind on the FN FNC when someone pointed out that the Federal law and their own prior rulings was inconsistent; the FNC lower used to be the regulated part pre-08.
https://www.atf.gov/file/55436/download
The problem with the AR is that like the FAL and FNC, the actual determining parts under Federal law are evenly split.
“Title 27, Code of Federal Regulations, section 478.11 defines a “firearm receiver” as, “[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.””
The lower contains the hammer and most of the firing mechanism. The upper contains the bolt and is threaded for the barrel. ATF was required to make a judgement call and added the metric of “where the magazine goes” to solve it. I’m not seeing any recent instance where prosecution was dropped to avoid setting precedent.
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