Walkabout In The Weminuche Wilderness

Herschel Smith · 05 Aug 2018 · 34 Comments

"There are no socialists in the bush" - HPS All of my physical training only barely prepared me for the difficulty of the Weminuche Wilderness (pronounced with the "e" silent).  It's National Forest land, not National Park.  The Department of Agriculture no longer prints maps of the area, so we relied on NatGeo for the map, and it's good, but not perfect. We have a lot of ground to cover, including traveling with firearms, the modification I made to one of my guns for the trip, the actors…… [read more]

Judicial Watch Sues The ATF For Obama-Era Records On Attempts To Ban M855 Ammunition

BY Herschel Smith
1 week, 4 days ago

Judicial Watch:

Judicial Watch announced today that it filed a Freedom of Information Act (FOIA) lawsuit against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), a component of the Department of Justice, for 1,900 pages of records about a proposed reclassification that would effectively ban certain types of AR-15 ammunition as armor-piercing (Judicial Watch v. U.S. Department of Justice (No. 1:18-cv-02218)).

Judicial Watch filed the lawsuit after the agency failed to respond to a May 14, 2018, FOIA request for the 1,900 documents about the Obama administration’s AR-15 ammo ban efforts. The documents include ATF talking points about the “Armor Piercing Ammunition Notice of Proposed Rulemaking” and other records discussing ammunition classification.

The lawsuit is the latest development in Judicial Watch’s more than three-year effort to obtain documents from the ATF. Judicial Watch discovered the document cache in separate litigation on the ammo ban issue.

In March 2015, more than 200 members of Congress wrote to former ATF Director B. Todd Jones to express their “serious concern” that the proposal to reclassify the ammunition types as armor-piercing may violate the Second Amendment by restricting ammunition that had been primarily used for “sporting purposes.” The ATF’s move “does not comport with the letter or spirit of the law and will interfere with Second Amendment rights by disrupting the market for ammunition that law abiding Americans use for sporting and other legitimate purposes,” the letter said. The ATF subsequently halted its efforts.

The precise statutory definition of armor-piercing ammunition can be found in 18 U.S.C. §921(a)(17).

“Simply put, the ATF refuses to comply with federal open records law,” Judicial Watch President Tom Fitton said. “The ATF has withheld records for over three years concerning the Obama administration’s shady attempt to institute gun control by restricting ammunition instead of guns.”

To begin with, civilians should have access to everything the military has, including armor-piercing ammunition, under our second amendment rights and duties.

Second, M855 (“Green Tip”) is not armor piercing ammunition.  That’s enough said.  If I have to say any more about that, I may as well try to teach calculus to my dog – I’ll probably have more success and I’m sure a more receptive audience.

Tom Fitton and Judicial Watch is doing Yeoman’s work on just about everything imaginable.  I’m on their email list and see what they’re engaged in, and I simply can’t link it all, and I certainly can’t intelligently comment on it all.  If you’re not on their distribution, you need to get on it right of way.

As I said before, most of the ATF employees were there under Holder and at least complicit in the abuse of American citizens.  That’s who they are, it’s the way they think.  Tom had to push this hard for success because what’s in the collection of documents is embarrassing to the ATF.  You can count on it.

And also as I’ve said before, for me (who cannot afford to file a lawsuit every time I turn around), the FOIA is essentially worthless.  The FedGov has ignored virtually every one of my requests (I’ve had success only once).  The power of the purse is what the Congress has over the heads of the bureaucratic tyrants.  They won’t use it.  Thus there is no check on their power.

Comments On ATF Bump Stock Ban

BY Herschel Smith
6 months, 2 weeks ago

James Wesley Rawles at Survival Blog has done a simply magnificent job of upbraiding the ATF.  It’s an absolute throw-down of blood and gore and broken bones when Rawles gets through with the ATF.  If you like seeing the FedGov slapped around, visit Survival Blog.  Here is a taste.

My specific objections are as follows. Note: I reserve the right to litigate on any or all of these. Furthermore EACH of the following numbered items are distinct separate objections and must be addressed individually with logical and complete specificity by the BATFE before the proposed rule is put into force:

1.) To declare existing privately owned devices contraband machineguns with no available method of registering them as machineguns constitutes an uncompensated taking.

2.) To declare existing privately owned devices contraband machineguns with no Grandfather Clause flies in the face of many decades of Federal case law, under Federal Jurisprudence. This also constitutes an uncompensated taking.

3.) The proposed redefinition of “machinegun” (per 26 U.S.C. 5845(b)) is vaguely worded. For example: What is meant by “function of the trigger”? Does that mean a trigger pull (only)? Does that mean a trigger release? Does that mean a pull OR release of a trigger? Or does that mean a pull AND release of a trigger? Does a partial pull of a trigger still constitute a function? Or must a pull of a trigger be through its entire arc to a stopping point to constitute a function?   Or must a pull of a trigger be through its entire arc to a stopping point and then a release to a reset point to constitute a function?   Or does a release of a trigger from a stopping point to a reset point to constitute a function? Or does a release of a trigger from a partially-pulled position to a reset point to constitute a function?

4.) More than a mere interpretation, it REDEFINES, AMPLIFIES and EXPANDS the wording of the NFA-’34 (26 U.S.C. 5845(b)). This is clearly bureaucratic overreach by the Executive Branch. Per the Constitution, only congress can MAKE laws. The executive branch and agencies can only ENFORCE already legislated and duly enacted laws.

5.) How can the BATFE redefine the meaning of the phrase “single function of the trigger” (per 26 U.S.C. 5845(b)) without the consent of congress?

6.) How can the BATFE further restrict the possession of Militia Weapons without a modification or repeal of the 2nd Amendment?

7.) By declaring a previously legal and constitutionally-protected “arm” suddenly “illegal” and “contraband” is a violation of the 2nd Amendment

8.) By declaring a previously legal and constitutionally-protected “arm” suddenly “illegal” and “contraband” and mandating its surrender to authorities would IDENTIFY the owner is thus a violation of the 5th Amendment protection from self-incrimination. It would also violate the 5th Amendment’s “taking” clause.

9.) By declaring a previously legal and constitutionally-protected “arm” suddenly “illegal” and “contraband” and mandating its surrender to authorities would violate the 4th Amendment protection from seizure without due process.

10.) I take exception to this wording: “Because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle”. That is vague.

11.) I take exception to this wording: “…initiate a continuous firing cycle with a single pull of the trigger.” That is grossly vague and violates the plain simple, Black Letter Law and the manifold intent of congress when it enacted NFA-’34 See: 26 U.S.C. 5845(b))

12.) I take exception to this wording: “…these devices convert…” It is not a conversion to the operating mechanism. Rather, it is either an adjunct or a firing technique, or both.

13.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does holding your your thumb in your belt-loop when firing from the hip!

14.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does holding the buttstock of a rifle a short distance from your shoulder when firing!

15.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does holding a rifle loosely at either shoulder level or hip level when firing! See: https://www.youtube.com/watch?v=7RdAhTxyP64

16.) I take exception to this wording: “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 reset IS indeed physical manipulation of the trigger by the shooter because BOTH the shooter’s body (including the trigger finger) and the gun itself (including the trigger itself) are in motion, when under the force of recoil.

17.) I take exception to this wording: “Hence, a semiautomatic firearm to which a bump-stock-type device is attached is able to produce automatic fire with a single pull of the trigger.” It is NOT automatic fire, as defined by congress in NFA-’34.

18.) I take exception to this wording: “Hence, a semiautomatic firearm to which a bump-stock-type device is attached is able to produce automatic fire with a single pull of the trigger.” It is not producing automatic fire. The shooter’s trigger finger is still producing the fire, one shot at a time.

19.) I take exception to this wording: “With limited exceptions, primarily as to government agencies, the GCA makes it unlawful for any person to transfer or possess a machinegun unless it was lawfully possessed prior to the effective date of the statute.” The Hughes Amendment to FOPA restricts only machineguns, not semi-automatics. Only congress can redefine the word “machinegun”.

20.) I take exception to this wording: “Consequently, current possessors of these devices would be required to surrender them, destroy them, or otherwise render them permanently inoperable upon the effective date of the final rule.” To “surrender them, destroy them, or otherwise render them permanently inoperable” would constitute an uncompensated “taking” which is not allowable under Federal jurisprudence.

21.) I take exception to this wording: “The bump-stock-type devices covered by this proposed rule were not in existence prior to the GCA’s effective date, and therefore would fall within the prohibition on machineguns if this Notice of Proposed Rulemaking (NPRM) is implemented.” That is fallacious. Stocks that were spring-loaded or hydraulically buffered (to absorb recoil–but that unintendedly can create a bumpfire condition) did indeed exist and were on the open market before FOPA 1986. For example, Winchester’s Hydra-Coil stock was invented and produced starting in the early 1960s. It was made for variety of guns, including some semi-autos including the Remington Model 58 semiautomatic shotgun and the Remington Model 742 semiautomatic rifle (with a detachable magazine). See: https://www.si.com/vault/1963/09/09/596517/an-inventor-takes-the-kick-out-of-shooting

James goes on through number 42.  It’s just a bloodbath, frankly.  He’s not a lawyer and clearly much smarter than anyone who works with the DoJ or ATF.

Closer to home, our own Fred Tippens writes the ATF with the following.

“Turning law abiding patriotic Americans, veterans, suburban moms, and men just trying to raise their families into criminals? Really? Why would I give a flying rat’s backside about a country that does this? Why? Why would I have any loyalty to this country if its government simply takes whatever it wants? I’m sure the irony is completely lost on you but are you going to send men with guns to take them? If you’re going to just up and ban things don’t you make the case for us to stockpile weapons and ammo? Do you know the definition of irony? The courts won’t help. The congress won’t help. The executive won’t help. What redress do we have? Why not just redefine and then ban all of the component parts and accessories of the common rifle? Are you going to ban them one at a time and hope that nobody will notice? Is this not tyranny? Do you want war with your own neighbors? Seriously? I’m only writing this so that I know I’ve done my part to avoid civil war. Now do your part, be for liberty…. I don’t want war so it’s your war to start or avoid. Please choose wisely.”

I have yet to come to terms with writing again.  They clearly didn’t engage what I wrote earlier and have no intention of engaging my points in the future.

I will point out one more thing about this ban.  The GOP establishment is clearly very good at playing the long game.  Trump won, but the GOP establishment is burning the place down, not Trump.

There was no logical or necessary reason to pack the Omnibus bill with spending for Planned Parenthood or for the CDC to issue gun control studies.  They have cut his support from two main constituencies: [1] right to life, and [2] gun rights.

Trump cannot win again without those two constituencies.  I’ve already heard folks in both camps tell me that they won’t vote for Trump again if hell freezes over.  Among pro-life workers (I know some) there was great sadness over the monies given to PP.

Thus the GOP has done two things it wanted to do.  They’ve got their gun control to run on in the next election without having to vote on it themselves (they are cowards).  They got the ATF to do the dishonest work for them.  Second, they have ensured that Trump is a one-term president.

As I said, it is the GOP establishment and not Trump who is burning the place down.

Second Amendment Advocates Should Reject DOJ “Bump Stock” Infringement

BY Herschel Smith
6 months, 2 weeks ago

David Codrea:

That said, and since it looks like the fix is in, it may also be fair to wonder what good it will do to comment on this latest iteration of the proposed rule on “rate-enhancing devices.” There are several reasons to go ahead and submit a comment in spite of such misgivings, not the least of which is it’s the right thing to do.

Well, maybe it is.  I just know that I’ve read the response to the comments submitted on the proposal to propose a rule (some of them were mine), and they may as well have bent over and crapped on the constitution and everyone who made comments about what it said.

It’s an amazing thing to see a group of people so okay with being so hated, detestable and disgusting.  I encourage my own readers to make comments even though the fix is indeed in.  Post them here.  If I make comments again, I won’t be as nice as I was the first time around.

ATF Rulemaking On Bump Stocks

BY Herschel Smith
9 months, 2 weeks ago

David Codrea:

The Department of Justice anticipates issuing a Notice of Proposed Rulemaking (NPRM) that would interpret the statutory definition of “machinegun” in the National Firearms Act of 1934 and Gun Control Act of 1968 to clarify whether certain devices, commonly known as “bump fire” stocks, fall within that definition,” a Tuesday Federal Register notice advises. “Before doing so, the Department and ATF need to gather information and comments from the public and industry regarding the nature and scope of the market for these devices.”

The document comment period ends on January 25, the notice continues, providing ways to send them in either by mail or via a submission form. The notice also provides background information, including a summary of claimed statutory authority as well as the ”justification” for the proposed rule, which unsurprisingly relies heavily on last October’s Las Vegas music festival murders to make the case that such controls are needed.

I knew this and had discussed it, but I’m torn on this.  On the one hand, I need to submit comments.  On the other hand, while I’ve seen ATF responses to my points before (concerning importation of shotguns), I’ve never been given more than cursory, dismissive treatment.  I don’t expect better treatment this time around.

I’ll let readers decide for me.  I need help if I’m going to submit comments.  My readers write better than I do, have more background in legal matters than I do, and can present the case better than I can.  I would actually like to submit comments from TCJ rather than just me.

If you have thoughts on this, whether merely single comments, multiple comments, or an actual outline for a response, please respond either in comments to this post or via email.  I’d rather it be in comments to this post since that will cause others to think about the issue and add to the information here.

As always with the federal bureaucracy, although we may want to call them names and curse at them, that will cause them to throw away our comments.  Keep it civil and make it something that will actually be difficult for them to deal with.

BATFE Tags: ,

Feds Go On Gun Confiscation Spree

BY Herschel Smith
10 months, 2 weeks ago

USA Today:

Federal authorities sought to take back guns from thousands of people the background check system should have blocked from buying weapons because they had criminal records, mental health issues or other problems that would disqualify them.

A USA TODAY review found that the FBI issued more than 4,000 requests last year for agents from the Bureau of Alcohol Tobacco Firearms and Explosives to retrieve guns from prohibited buyers.

It’s the largest number of such retrieval requests in 10 years, according to FBI records – an especially striking statistic after revelations that a breakdown in the background check system allowed a troubled Air Force veteran to buy a rifle later used to kill 26 worshipers at a Texas church last month.

The FBI’s National Instant Criminal Background Check System (NICS) vets millions of gun purchase transactions every year. But the thousands of gun seizure requests highlight persistent problems in a system where analysts must complete background checks within three days of the proposed purchase. If the background check is not complete within the 72-hour time limit, federal law allows the sale to go forward. ATF agents are asked to take back the guns if the FBI later finds these sales should have been denied.

In addition to the public safety risks, the ATF agents tasked with retrievingthe banned weapons from unauthorized gun owners across the country are exposed to potentially dangerous confrontations.

“These are people who shouldn’t have weapons in the first place, and it just takes one to do something that could have tragic consequences,” said David Chipman, a former ATF official who helped oversee the firearm retrieval program. “You don’t want ATF to stand for ‘after the fact.'”

No, I don’t.  I’d rather the ATF didn’t exist at all since they are an unconstitutional entity based on unconstitutional laws and regulations.

There.  Fixed it.

BATFE Tags:

ATF Proposals On Guns

BY Herschel Smith
1 year, 8 months ago

David Codrea:

“As a long term bureaucrat, this white paper reads as an application for the ATF director spot,” Weingarten surmises. “The paper fairly screams: I am willing to work with you, and I know how to take direction.”

That tracks with opinions I’ve received from insider and industry sources. It also works to mitigate the threat to the Bureau of having its functions spun off to different agencies.

I must admit to being skeptical of the motivation myself.  Government employees don’t usually work to undermine the scope of their authority.

I’ll also comment on a point David makes about a FOIA request in which he was involved.  Perhaps the FOIA request caught them with their pants down and forces them to consider their failures as an organization.

My experience has been that any entity that thinks it will be embarrassed by what it divulges in response to a FOIA will ignore the FOIA.  If you have massive legal assets like Judicial Watch, you typically can get what you want, albeit with some effort.  But for me, this usually goes badly.  The FOIA framework has no teeth because little people like me have no ability to force them to obey the law.

At any rate, the white paper reads like a job application.  Perhaps it is.  I don’t blame him.  I blame the executive branch of the government for allowing the ATF to get this badly out of control, I blame the Senate for the NFA and GCA, and I blame the people of the U.S. for putting communists in place who would promulgate this kind of legal framework to begin with.

What a sorry situation.

BATFE Tags:

Notes From HPS

BY Herschel Smith
4 years, 7 months ago

David Codrea:

Such an assumption is not backed by a ruling or determination that so-called “80 percent receivers,” heretofore acknowledged by ATF not to be firearms, are now considered unregistered guns.

EP Armory and Ares Armor is doing yeoman’s work in this struggle against the forces of darkness, and you have to respect them for their position.  Visit David’s article for the latest.

Kurt Hofmann:

Without manufacturing or selling anything that can be considered a firearm under the law, one must, according to the BATFE, still be licensed as a gun dealer before offering access to the tools, and providing instruction in the process of completing an 80% receiver. There is, of course, precisely nothing in any federal statute that would impose such a requirement–the BATFE is making it up from whole cloth.

This is what happens when a lawless man like Eric Holder supervises a lawless organization like the DOJ under Obama which manages yet another lawless sub-part like the ATF.  Laws are for little people.  And the judges are in the administration’s pocket.

Via Uncle, Only Guns and Money has endorsements for NRA board.  By the way, I recently renewed my NRA membership (yearly renewal), as I figure that it justifies my right to complain when they don’t do what I want them to do.

Mike Vanderboegh is out of surgery.  He thanks all those who prayed for him.  I did.

Finally, via the Professor, there is this:

“Given that there are tens of thousands of substations on the national grid, PG&E’s experience may not seem so alarming. But according to the Federal Energy Regulatory Commission study disclosed by the Journal, a few dozen of the substations are so important to the flow of energy that knocking out just nine of them would cause a metastasizing blackout that stretched from coast to coast. And replacement transformers for these substations can take more than a year to build, deliver and install, in part because most are made overseas.”

And of course, my readers already knew this.  And knew it some more.  And some more.  And more still.  I’m not bragging.  I’m just sayin’.

More On ATF Ruling On Sporting Purposes For Ammunition

BY Herschel Smith
5 years, 10 months ago

Following up on ATF Ruling On Sporting Purposes Exemption To Armor Piercing Ammunition, Cam Edwards talks to John Frazer, NRA-ILA’s Director of Research and Information, in a very informative video.  It’s worth watching.

ATF Ruling On Sporting Purposes Exemption To Armor Piercing Ammunition

BY Herschel Smith
5 years, 10 months ago

Courtesy of Say Uncle, the NRA has caught indication of what could be a very important ATF ruling, if not for what it does, certainly for the precedent it sets.

The Bureau of Alcohol, Tobacco, Firearms and Explosives is taking public comments on its website until December 31, with regard to how it should determine what types of projectiles meet the “sporting purposes” exception to the federal “armor piercing ammunition” law. At this time, the question centers primarily around rifle-caliber projectiles made of metals harder than lead, such as the Barnes Bullets solid brass hunting bullets.

Under the law, adopted in 1986, “armor piercing ammunition” is defined as “a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium.” A second definition, added in the 1990s, includes “a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.”

Because handguns have been made in certain rifle calibers, many bullets that were designed originally for rifles also “may be used in a handgun.” If such projectiles are made of the metals listed in the law, they are restricted as “armor piercing ammunition” unless they meet one of the law’s exemptions. Being considered at this time is the exemption for “a projectile which the Attorney General finds is primarily intended to be used for sporting purposes.”

Last week, BATFE met separately with gun control activist groups, firearm industry groups, and groups representing hunters and other gun owners. The latter meeting included the NRA; Safari Club International; representatives of state wildlife agencies; and firearm and ammunition importers.

BATFE has expressed two opinions about the law and exemption that warrant particular scrutiny.

First, BATFE suggested that it believes that the “armor piercing ammunition” law was intended to affect all ammunition capable of penetrating soft body armor worn by law enforcement officers. NRA reminded BATFE that the law was intended to protect law enforcement officers against the potential threat posed a very narrowly-defined category of projectiles: those, such as KTW and Arcane, which by virtue of their hard metal construction were designed and intended to be used by law enforcement officers to shoot through hard objects, such as automobile glass and doors, when fired at the velocities typical of handgun-caliber ammunition fired from handguns. Neither before nor since the law’s enactment, has an officer been killed due to such a bullet penetrating soft body armor.

NRA further pointed out that the legislative history of the law clearly shows that members of Congress, including the sponsor of the law in the House, Rep. Mario Biaggi (D-N.Y.), a decorated former NYPD police officer, expressly did not want the law to restrict rifle-caliber bullets that happen to also be useable in handguns chambered to use rifle cartridges.

Second, BATFE says it considers projectiles to not be exempt under the “sporting purposes” test if they “pose a threat to public safety and law enforcement.” BATFE also expressed concern that since the law was adopted, various new rifle-caliber handguns have been invented. On that point, NRA made clear that the sporting purposes exemption is straightforward: it applies to all projectiles that are “primarily intended for sporting purposes”–nothing more, and nothing less. Under the law, a projectile would be exempt if it is primarily intended for sporting purposes, even if it is secondarily intended for self-defense or some other legitimate purpose. Furthermore, the law does not condition its restrictive language or its “sporting purposes” exemption on the design of a particular handgun; the law is concerned only with specific projectiles that can be used in handguns. NRA cautioned the BATFE against interpreting the law in a manner more restrictive than Congress intended.

I think that the NRA comments are, in the main, on target.  It’s easy to conflate purposes for laws that were crafted so long ago.

Also see the comments at Say Uncle.  I agree that this will end up in an effort to control long gun ammunition, and have recommended before the complete abolition of the ATF as an unwarranted, unconstitutional and wasteful intrusion on the rights of citizens of the U.S.

Take careful note, too, what they say concerns them: “BATFE also expressed concern that since the law was adopted, various new rifle-caliber handguns have been invented.”

I wonder how many Department of Justice employees are equally concerned when SWAT teams raids the homes of unsuspecting and incorrect targets, such as Mr. Eurie Stamps, or Ms. Zaelit, or Mr. Tuppeny, or Ms. Lloyd, or Thomas and Rosalie Avina, or Mr. Kenneth Wright?  Statists will be statists.  Can a leopard change its spots?

Finally, this issue of the sporting purposes test is laughable.  The ATF didn’t listen when I pointed this out before, and they aren’t likely to start now.  It isn’t that the test is difficult, or convoluted, or hard to apply, but necessary nonetheless because it’s the law.  The issue is that it is self referentially incoherent.  It cannot be logically applied because it presupposes the consequent.

The ATF must decide what is the “sporting purposes” category by populating the list with examples, and then make the claim that such-and-such an example is deemed to be or not to be a “sporting purpose” because it is or isn’t on the list.  It reasons in a circle.

Not that the ATF will care.  And not that they will care what we have to say about ammunition either.

UPDATE: Thanks to Glenn Reynolds for the attention!

UPDATE #2: See also David Codrea, Mike Vanderboegh and Kurt Hofmann.

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