So what? It won’t matter one whit. Scary, scary, scary … Pretty Boy Floyd, Al Capone, etc., scary, scary, scary, even more scary than the mass shooting at Waco and assassination at Ruby Ridge by Lon Horiuchi, or anything else the FedGov has perpetrated.

But that’s okay, because FedGov. It’s okay when they do it.

My prediction doesn’t change. The two “conservative” women on the court, Roberts and Barrett, side with the communists on this matter and overturn the Fifth Circuit. Barrett has been a huge, huge, huge disappointment, and you can blame Trump for her, as with so many other hundreds of things. In literally a once in a lifetime opportunity, we could have had Don Willett or James Ho. Instead, we got her. Thanks, Trump. And if Barrett is the sort of judge the Federalist Society is putting up and recommending, then what good are they? Stop listening to them.

She failed to enjoin the Illinois AWB, and for the record (I didn’t know this until a few days ago), she opposed taking the Dobbs case. I guess she would have been fine leaving Roe in place.

It’s good to see this one go down in the flames it should.  Trump and the ATF should be ashamed.  But I suspect both would defend it to this day and beyond.

Stephen Stamboulieh sends this my way a couple of days ago, but since then it has been covered by others (e.g., see Reason here and here, and reddit/Firearms here and here, and also, never forget the NRA’s position on bump stocks).

This is a very well-written and well-researched opinion and points out the distinction between a function of the trigger and function of the shooter.

Here is the opinion.

BLUF:

1. A bump stock does not turn a semiautomatic firearm into a machine gun by the statutory definition of machine gun.
2. Even if the Fifth Circuit is wrong, the ATF lacked the authority to make this change.
3. We have no business deferring to the authority of the federal regulators to make this determination since there is no lack of clarity on this issue.  The issue is perfectly clear – a rifle outfitted with a bump stock is not a machine gun.

Elsewhere, the ATF is becoming tepid over their upcoming rulemaking on unserialized firearms.

Yet the move, which the Justice Department described as a clarification of the regulation, is not without risk. Because the rule was created through executive action, rather than a statute validated by Congress, it has given companies confidence that they can keep selling individual gun parts.

Administration officials, speaking on condition of anonymity because they were not authorized to publicly discuss possible litigation, said the new guidance would almost certainly be challenged in federal court on the grounds that it violates the Gun Control Act of 1968, which allows people to build firearms for their personal use without submitting to background checks or applying serial numbers.

Their upcoming rulemaking on unserialized firearms not only violates prior statutory law, it now suffers from the Fifth Circuit decision on bump stocks, which says that the ATF lacked the authority to inflict this new regulation on the American public.

Queue up the same thing for unserialized firearms.  And a thousand other lawsuits.

The only problem with the Fifth Circuit decision is that it applies only to states controlled by the Fifth Circuit.

On the one hand, technically, I understand his points about why the previous two cases were not granted certiorari.

On the other hand, while I understand why he makes his prediction, he tends to be over-optimistic in my opinion.

I predict exactly the opposite. I predict that if it ever makes it to the SDCOTUS, it will lose.

Source.

… two legal challenges to the Trump administration’s prohibition are pending at the Supreme Court – including one that has been rescheduled for consideration 20 times. The lack of a decision about whether or not the court will hear the litigation has led to speculation among experts who follow the issue closely that the court’s 6-3 conservative majority may not agree on how to proceed.

The court twice declined emergency requests from gun groups to delay implementation of the ban in 2019. And it declined to hear a similar challenge in 2020.

“The six conservatives on the court right now aren’t really on the same page about guns as much as people think they are,” said Dru Stevenson, a professor at South Texas College of Law Houston. Some in the court’s conservative wing, he said, “might be afraid to take the case if they’re not sure that they’re going to get their way.”

In addition to once again raising the issue of guns at the nation’s highest court months after it decided a landmark Second Amendment case, the new litigation also delves into how much power federal agencies have to create regulations when the law those rules are based on is unclear. Conservatives for years have sought to limit that agency discretion and their arguments seem to be gaining traction with the high court.

[ … ]

Feldman points to another reason why the Supreme Court may have been slow to take up the issue of bump stocks: So far, gun rights groups have been losing in appeals courts. The justices often like to see a disagreement in circuit courts – known as a “circuit split” – before wading in to resolve a dispute and provide guidance to lower courts on a thorny legal question.

“Right now,” Feldman said, “there is no circuit split.”

But that may soon change. In a separate case, the New Orleans-based U.S. Court of Appeals for the 5th Circuit has scheduled arguments in a challenge to the bump stock ban for Tuesday. Meanwhile, at least one of the justices has signaled a receptivity to the arguments being made by the gun rights groups.

The ATF, Associate Justice Neil Gorsuch wrote in 2020, “used to tell everyone that bump stocks don’t qualify as ‘machineguns.’ Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it.

“Why should courts,” Gorsuch asked, “defer to such bureaucratic pirouetting?”

Good question.  Here’s the answer.  They shouldn’t.

The bump stock decision was perhaps the worst mistake Trump ever made because of the precedent it set.  I don’t have a bump stock, but that isn’t the point.  The right to own one without interference from the FedGov is enshrined in the 2A.

But more importantly, with all due respect to Justice Gorsuch and his observation on pirouetting (which is correct since the ATF has taken contradictory positions on this as they have on many other things), this is about the question whether a bureaucratic organization has the authority and power to write law.

Here’s the answer.  They don’t.  Beyond that, even the ban on machine guns, I claim, runs afoul of the 2A.  So if the ATF had always taken the position that bump stocks met the definition of machine gun and they had never pirouetted on this issue, it still doesn’t make it right.  Pirouetting isn’t what makes this sinful.  It’s the failure to follow the constitution.

However, with the law and order justices, and also with the progressives, I doubt this issue will find traction in the SCOTUS and I have serious doubts they will overturn this ridiculous rule and put the ATF in its place.

So you see, if they don’t overturn it, the conservatives want to have their cake and eat it too.  On the one hand, they want to disgorge the authority of the bureaucrats from making law (de facto authority because they’ve done it unchallenged), but on the other hand, when it comes to bump stocks their Ox may be gored.  So they will find another route to do their disgorgement of the controllers if they ever do it all.

Will the Supreme Court finally deal the death blow to the bump stock ban?  Color me skeptical.

News from one of the corrupt circuits.

SALT LAKE CITY — A federal appeals court has rejected a Utah gun enthusiast’s attempt to block a Trump administration rule that bans a gun accessory known as a bump stock.

A three-judge panel from the 10th Circuit Court of Appeals in Denver upheld a district court ruling last year that found Clark Aposhian wasn’t likely to win his challenge to a Bureau of Alcohol, Tobacco, Firearms and Explosives rule that classifies bump stocks as machine guns. The court also found that he failed to show that blocking the ban would not hurt the public’s interest.

“Moreover, the public has a strong interest in banning the possession and transfer of machine guns, including bump stocks. The ban supports the safety of the public in general, and the safety of law enforcement officers and first responders,” according to the 2-1 decision.

Continuing the mythology, I see, as long as it serves their interests.

In a dissenting opinion, Judge Joel Carson concluded that a semiautomatic weapon equipped with a bump stock isn’t a machine gun under federal law.

To be considered a machine gun the trigger must function only once to fire more than one shot, and the mechanism that allows the trigger to function must be self-acting or self-regulating, he wrote.

“So does a bump stock increase the speed by which the user can fire rounds? Yes,” Carson wrote. “But does that mean the firearm to which it is attached is a machine gun under the National Firearms Act? No.”

He has a sense of honor, so he lacks the necessary temperament to sit on a court of any kind.

Never forget it was the NRA and Trump who gave you this.

Len Savage received this document as part of his FOIA request.  He asks, “I wonder how many other members of Congress received similar letters?”

This congressman stood by mute while the ATF did an end run around the constitution concerning how laws are made.  Because overlords.  Because administrative state.

And note, Trump is as willing to use this administrative state to accomplish his ends as the democrats.

In order to prevent you from having to download a PDF, I’m showing this to you in JPEGs.

Guns.com.

A federal judge last week dismissed a claim from bump stock retailers who sued the government for damages they incurred after having to destroy their inventory.

The plaintiffs include two companies as well as two individuals who in all lost 74,995 bump stocks to the ban which took effect in March. The case, filed in a Washington, D.C. federal court, argued that the ban’s requirement that bump-stocks be surrendered or destroyed within 90 days, with no opportunity for registration, violated the Takings Clause of the Fifth Amendment which states that private property can’t be taken for public use without compensation.

The court didn’t see it that way.

“The law is different in this case because the government, as the sovereign, has the power to take property that is dangerous, diseased, or used in criminal activities without compensation,” said Senior Circuit Judge Loren A. Smith in his nine-page ruling. “Here, ATF acted properly within the confines of the limited federal police power.”

Smith, appointed to the federal bench in 1985 by President Ronald Reagan, said the $500,000 claim under the Tucker Act would be different “if the government confiscated a gun legally possessed by a person not committing a crime,” but argued that “machine guns,” which was how bump stocks were reclassified, are not protected by the Second Amendment.

First of all, machine guns, since they are used for military purposes, are absolutely protected by the second amendment.

Second,this is called “begging the question.”  I hate it when writers misuse the term “begging the question.”  It doesn’t mean that something necessarily brings up a question, as many writers assume.  It is a formal logical fallacy.  It’s circular reasoning, or proving the presupposition.  Bump stocks were declared machine guns.  Now that they have been declared machine guns, they can be regulated as such, so argues the judge.  That’s like declaring your skin to be green, and for proof reverting back to my declaration.

That’s not the issue.  The issue was and is whether the FedGov ever had the right to declare bump stocks to be machine guns in the first place, and then do they have the authority to take it without compensation.  So much for “judges.”  So much for Reagan.  So much for the constitution.

The constitution, which is merely a covenant, is unimportant to these people.  The FedGov can declare anything they want to be illegal, take it, and ignore appellations in court.  The constitution is a dead document.  The covenant has been broken.  It is null and void, like when a spouse cheats.

The Washington Times.

The federal government collected fewer than 1,000 bump stocks during the run-up to a new ban in March, despite estimates that hundreds of thousands of the devices that mimic machine gun fire are in circulation, according to federal data provided to The Washington Times by the Justice Department.

As the nation marked the second anniversary Oct. 1 of the Las Vegas massacre, which prodded the Trump administration to ban bump stocks, the numbers offer a cautionary tale on the scope and resources needed to enforce any sort of gun buyback program.

Between the issuance of the final rule banning the devices in December 2018 and April 4, 2019, shortly after the prohibition took effect in late March, 582 bump stocks were “abandoned” to the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to Justice Department records, and 98 bump stocks were kept as evidence.

The Times obtained the records through a Freedom of Information Act request.

The administration cited estimates that 280,000 to 520,000 bump-stock-type devices were in circulation when it published the final rule in December.

I’ve seen estimates as high as 550,000 in circulation, but we’ll take their number of 520,000.  That computes to 0.1119%.

What do you think will happen when the FedGov demands that citizens turn over $1000 rifles which have been bought with the intent of bequeathing to their children for personal defense?

Len Savage sends the following pages released as part of his FOIA request on the bump stock ban.

Now, let’s pose some questions for readers to consider.  First, why are these pages marked SECRET/NOFORN (No Foreign Nationals)?  Second, if you were Paddock, why would you voluntarily choose to shoot an AR-15 with a bump stock in a crime you intended to perpetrate when you could shoot a fully automatic weapon?  Third (and I’ll keep asking this until I get an answer), why did the FBI refuse to allow the ATF to examine the crime scene weapons?

Apparently, the most important requirement for government “service” is that you are willing to hide things from the public and release only information you see as beneficial to your cause (whatever that might be).  In other circles, that’s called lying.

In the absence of any further information, I’ll continue to believe my own son’s analysis after listening to the consistency of the rate of fire over video: “He was using a fully automatic weapon.”  And my son has plenty of time under his belt shooting fully automatic weapons.  Bottom line – I’ll believe my son over the FedGov.

In FOIA Response From The ATF: No Bumpstocks Used In Any Crime To Date, I conveyed an ATF response to a FOIA request.  This request was made on behalf of Len Savage, and Len sends me this initial letter making the request.

Obviously, they had trouble getting anything out of the ATF.  Len also sent some other email exchanges between him and the ATF which I will eventually post.

In the mean time, David Codrea had this to say.

Herschel has some thoughts. [More]

To reiterate, it’s not “us” creating “conspiracy theories”: Mr. Stamboulieh, Mr. Savage and I are simply repeating what the government is saying, and if that results in inferences and conclusions, they are the ones who can clear it all up — and won’t.

I received the Chisolm letter from the principals the other day along with the document that prompted this response. There’s more to say, which I will in a day or so when I finish some other stuff I’m working on first.

The main “spoiler” I’ll give away is that the government attorney is being cute here, and I don’t think the federal judiciary is going to appreciate that.

Stay tuned.

Okay, I’m a bit out of the loop on this and both Len and David know more than I do about what’s going on.  I’ll try to stay in better touch with both of them on this.

I accept David’s observation that the government is trying to be “cute.”  But I’ll throw in that they’re also being very careful.  I’ve worked with FedGov lawyers before, and they don’t like putting documents out containing material false information.  If any licensee of any kind sends information to FedGov that causes them to repeat it in such a manner that the FedGov owns it, e.g., it ends up in the federal register or other archived government documents, they get really pissed and come after you.

They don’t like material false information because for one, it’s illegal to communicate it (either to or on the part of FedGov), and two, it’s unethical.  If it can be demonstrated that the material false information was knowing and intentional, that can mean disbarment (for a lawyer) or even imprisonment.

I’m sure they’re being “cute.”  I am also sure they are being very, very, very careful.