Archive for the 'BATFE' Category

Fifth Circuit Issues Injunction Against ATF Pistol Brace Rule

BY Herschel Smith
3 days, 23 hours ago

Some Options for AR Pistols

5 days, 2 hours ago

If you own one of these things with a brace you have a decision to make. Doing nothing is still a decision. The article is about more than just the brace and covers AR pistols in .300 AAC Blackout among other things.

Like most people I can shoot more accurately with a rifle. An AR pistol with a brace is not a rifle but it does give at least three points of contact when used as intended. I bought a stripped lower receiver from my local gun shop and ordered a lower build kit from Palmetto State Armory. Online an upper receiver with a ten-inch barrel was ordered. Besides a red dot optic and flashlight, a detachable sling was desired. An SBA3 pistol brace was chosen because of the good reviews and the ambidextrous QD sling socket. After everything was assembled it became one of my favorite firearms. Accurate, low profile, in a caliber that had dozens of projectiles in weight and configuration with many suitable propellants that could be experimented with. But then came January of 2023.

The ATF rule 2021R-08F, almost 300 pages of nebulous wording of what classifies as a short-barreled rifle (SBR) includes overall length, weight, and eye relief of an optic. What it boils down to is if you have a barrel less than sixteen inches and a pistol brace the ATF now considers it an SBR.

ATF Attempts Confiscation of FRTs

2 weeks, 3 days ago

ATF making up laws and threatening citizens by “just doing my job.”


CRS Firearms: The Legal Community Doesn’t Study Logic Any More

BY Herschel Smith
4 weeks, 1 day ago

I won’t rehearse the history of Matt Hoover and CRS Firearms.  I think most of you know it anyway.  I also won’t rehearse my love for logic.  Most of you know that anyway.  Mark does a nice job of finding a very relevant legal precedent that should have been applied before the idiots at the DOJ and ATF ever brought him to trial.

The ATF was never able to demonstrate that what Matt helped to sell could ever work, or did ever work.  It was a collector’s item, and nothing more.  Anway, here is the relevant part from the court case.

Hypotheticals further illustrate the weakness of this methodology. A mouse is not an “elephant” solely because it has three characteristics that are common to known elephants: a tail, gray skin, and four legs. A child’s bike is not a “motorcycle” solely because it has three characteristics common to known motorcycles: two rubber tires, handlebars, and a leather seat. And a Bud Light is not “Single-Malt Scotch,” just because it is frequently  served in a glass container, contains alcohol, and is available for purchase at a tavern. To close with a firearm-related example: a hockey puck is not a “rubber bullet,” just because it has rounded sides, is made of vulcanized rubber, and is capable of causing injury when launched at high speeds. Learning that one object has three characteristics in common with some category may not be very helpful in determining whether the object in question belongs in that category.

I love the judge’s use of logic.  All law school graduates should be required to take multiple courses in Aristotelian (or classic) logic, and furthermore, logic should be an integral part of the BAR exam. I’ve read books on logic. Why shouldn’t a lawyer be required to do the same thing?

ATF: We Don’t Need No Laws!

BY Herschel Smith
2 months ago

Even after judge Reed O’Conner issued a preliminary injunction in the case of the Polymer80, the ATF is bowing their back up and demanding that their rule be enforced.  They literally don’t care what the court says.  They are in love with the courts when they side with the controllers, and ignore them when they don’t.

They are among the most lawless people on the planet. ATF doesn’t need laws – they make ’em.

Another Wrong Home Raid by the ATF

BY Herschel Smith
2 months, 2 weeks ago

Oh, no big deal.  We’ll cover the cost of the stuff we broke.  Sorry to have gotten the wrong room.  As for the lady we threw into the road half naked, we let her go as soon as we figured out she wasn’t our target.

No biggie.  See ya’.

Seriously.  These people should all be on a road crew digging dirt and preparing to lay asphalt.

GOA Motion for Preliminary Injunction Against the ATF Concerning the Pistol Brace Rule

BY Herschel Smith
2 months, 3 weeks ago

Gun Owners of America has filed a motion for a preliminary injunction against the ATF concerning the pistol brace rule.  The motion can be found in its entirety here.  The motion concludes as follows.

The fact that the Final Rule technically presents a (forced) choice does not absolve it of its unconstitutional sins. As the Fifth Circuit observed in BST Holdings v. OSHA, “the loss of constitutional freedoms ‘for even minimal periods of time … unquestionably constitutes irreparable injury.’” 17 F.4th 604, 618 (5th Cir. 2021) (burden on liberty interests posed by vaccination mandate was irreparable harm) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). The vaccination mandate in BST Holdings “threaten[ed] to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).” Id. Here, the Final Rule imposes a similar choice, forcing individuals to choose between destroying their property or prosecution.

When the government is a party, the balance-of-equities and public-interest factors merge. See Nken v. Holder, 556 U.S. 418, 435 (2009); Texas v. United States, 809 F.3d 134, 187 (5th Cir. 2016) (same). A court therefore must weigh whether “the threatened injury outweighs any harm that may result from the injunction to the non-movant” and whether “the injunction will not undermine the public interest.” Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051, 1056 (5th Cir. 1997). There is no harm to ATF from pausing enforcement of the Final Rule and maintaining the status quo. The Final Rule claims to “enhance[] public safety,” 88 Fed. Reg. at 6481, yet ATF is able to point to only two handgun braces (out of millions) that have been criminally misused, see 88 Fed. Reg. at 6495. Even then, there is no evidence that those crimes could not have been committed using a different firearm. Weighing against this are the very real and ongoing irreparable harms to Plaintiffs discussed above. Indeed, the public is served when the law is followed, and “there is generally no public interest in the perpetuation of unlawful agency action.” Wages & White Lion Invs., LLC, v. U.S. Food & Drug Admin., 16 F.4th 528, 560 (5th Cir. 2021) (citation omitted). The balance of equities and public interest weigh heavily in favor of an injunction.

GOA and GOF have members and supporters nationwide. Exhibit 13 at ¶ 6. The geographic scope of interests presented, as well as the complications inherent to a piecemeal implementation or injunction of the Final Rule, which impacts criminal prosecutions and fundamental rights, support this Court granting nationwide relief.

For the foregoing reasons, this Court should preliminarily enjoin Defendants from enforcing the Final Rule.

Our friend Stephen Stamboulieh is one of the attorneys in this case.

A Closer Look at the Pivotal Bruen Decision

3 months ago

James Wesley Rawles, at Survival Blog:

The U.S. Supreme Court’s New York State Rifle & Pistol Assn., Inc. v. Bruen decision (issued June 23, 2022) was a pivotal ruling.  Following up on the District of Columbia v. Heller (2008) and the McDonald v. City of Chicago (2010) decisions, Bruen reaffirmed private gun rights, quite solidly. Up until those three decisions, the Supreme Court had conspicuously ignored taking up any Second Amendment cases, for more than 50 years. But now, the highest court has made it quite clear that the right to keep and bear arms is nigh-on absolute.

I’ve mentioned the Bruen decision before in SurvivalBlog. But today, I’d like like to examine it more closely.

The majority opinion for Bruen was written by one of my heroes, Justice Clarence Thomas. He had previously lamented that the Second Amendment had been treated as “a disfavored right.”  But in the 2022 decision, Justice Thomas set things write. He forthrightly wrote that the only gun regulations that can be deemed constitutional are ones that don’t infringe on conduct that is plainly covered by the text of the Second Amendment and that are “consistent with this Nation’s historical tradition.” This part of Bruen means that any gun law enacted at any level must have a demonstrable parallel in regulations that were in place at the time of the ratification of the Bill of Rights — meaning circa December, 1791. Thus, Bruen sets a very high bar for legislators to hurdle. If lawmakers cannot cite a similar law that existed after the War of Independence but before December, 1791, then any statute pertaining to arms of any description would be unconstitutional!

It’s an interesting rehearsal of some little known history, and with Bruen, history matters. In light of the decision, one has to ask by what authority does the F exist in ATF? Read the rest.

Montana Governor Gianforte Letter to Merrick Garland Concerning Firearms Rules Enforcement

BY Herschel Smith
3 months, 1 week ago

It can be found here.

Bhah.  Weak tea.

It does the same sort of thing we’ve observed so many times before with either those who call themselves constitutional Sheriffs or otherwise state lawmakers.  They won’t use their own money or personnel to enforce federal regulations they believe are unconstitutional.

Well then.  The FedGov SWAT teams are shaking in their jackboots!

But this is an easy letter to sign.  No state or county representative has to enable or assist in the enforcement of federal laws anyway.  Nothing changes with this letter.

The only real step that will make any difference is the threat to arrest any agent of the federal government who crosses state lines to enforce these infringements, and then carrying through with the threats.

Even if a court couldn’t make good on a change, they could leave them in jail for a few months due to overburdened court systems, strip them of their weapons, gear and credentials, and drop them off at the state line with nothing but a felony arrest record.

NRA predicts Supreme Court will finally define Second Amendment

3 months, 1 week ago

This is horrifying, and why I hate (yes) the NRA. The Second Amendment defines itself. The entire purpose of the 2A is the definition of what’s allowed and the specific purposes for the allowance. The NRA is just awful. They always set a false premise that’s designed to reduce your freedoms. Everything they touch gets worse for Americans while they and the politicians get rich. The NRA must be destroyed.

A coalition led by the National Rifle Association this week sued to stop the Biden administration’s bid to regulate AR-style “pistols,” an effort that could prompt the Supreme Court to finally define what is allowed under the 231-year-old Second Amendment.

While its suit is specifically aimed at the Bureau of Alcohol, Tobacco, Firearms and Explosives and its flip-flop on regulating and taxing guns, it has the potential to both smoke out the court on what is legal under the Second Amendment and end years of practice by federal agencies and states to make up rules that Congress is supposed to set.

That’s where the AR pistol suit comes in. Until this month, the ATF said the guns equipped with arm braces to steady the firearms, especially for the disabled, were OK to buy with just a background check. But they have redefined them as a weapon covered by the Al Capone era National Firearms Act that requires a lengthy application, registration, photos and fingerprints, and a $200 tax.

In challenging the politically-charged flip-flop by ATF, Cotton hopes the case will land in the conservative and somewhat pro-gun Supreme Court and that it will be ruled unconstitutional. He expects that because the Bruen case reasoned that courts have to decide what is allowed based on what the nation’s founders meant in 1791 when virtually nothing was off-limits.

“Outside legal circles, Bruen is known primarily for holding correctly that citizens’ right to self-defense means they have the right to have the tools to defend themselves outside of their home. You can carry that self-defense firearm outside of your home,” said Cotton.

“But what a lot of people don’t realize is it also set a standard for how all gun laws, federal, state, and local, have to be evaluated in terms of does it pass constitutional muster. And that standard is we roll the calendar back to 1791 when the Second Amendment was adopted, the technical words are ‘is there a historical analog for the proposed current law or the existing current law.’ That’s just a fancy way of saying, ‘Was that type of restriction in existence in 1791?’ If it wasn’t, then it can’t be now,” he said.

Cotton added, “That’s why so many of the things are falling right now.” He cited gun control laws in New York, New Jersey, Louisiana, Maryland, and elsewhere that are being pulled back to conform to the recent rulings.

He predicted that a fuller definition of the Second Amendment by the court could come within two years because so many new gun cases are being filed and likely headed to the high court.

The good news is that the NRA is not the lead plaintiff. The West Virginia and North Dakota AGs appear to be the lead on this, which may answer the prior question; why file in North Dakota? Not sure if the disabled veteran, who is also a plaintiff, is a resident of North Dakota, which may also explain that decision.

Whatever you do, dear friends of liberty, keep the NRA lawyers out of the courtroom if you want to keep your rights!

From the NRA page, there are no usable details other than this.

The case is captioned Firearms Regulatory Accountability Coalition, Inc.[FRAC], v. Merrick Garland and was filed in the United States District Court for the District of North Dakota. Other plaintiffs are: SB Tactical, B&T USA, Wounded Warrior Richard Cicero, and a coalition of 25 states led by West Virginia Attorney General Patrick Morrisey and North Dakota Attorney General Drew Wrigley, also including Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming.

I don’t know anything about FRAC. It appears to be a lobbyist group that seeks consistent regulations. I’m not a fan of industry lobbyists suing over the Pistol Brace. They are not suing on behalf of individual rights under the 2A; they are suing for consistent regulation. I don’t want consistent regulations; I want none!

The clock is ticking on this; we’ll have to see if any of the suits can get traction and resolution in the remainder of the 120 days.

Herschel has been tracking this prior:

Six Pistol Brace Lawsuits

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