The Paradox and Absurdities of Carbon-Fretting and Rewilding

Herschel Smith · 28 Jan 2024 · 3 Comments

The Bureau of Land Management is planning a truly boneheaded move, angering some conservationists over the affects to herd populations and migration routes.  From Field & Stream. The Bureau of Land Management (BLM) recently released a draft plan outlining potential solar energy development in the West. The proposal is an update of the BLM’s 2012 Western Solar Plan. It adds five new states—Idaho, Montana, Oregon, Washington, and Wyoming—to a list of 11 western states already earmarked…… [read more]

Why the Cargill Case Will Be Bigger Than Bruen

BY Herschel Smith
3 days, 21 hours ago

He makes a good case, but my question is why hasn’t the SCOTUS taken up one of the AWB cases yet? Are they still running from it like screaming little girls? That would be appropriate for Roberts and Barrett.

Regarding the bump stock ban, you have Trump to thank for that, along with the notion of making laws up by sitting in in the Oval office and telling the ATF what laws to make and the awful precedent that sets. Never forget that.

Bump Stock Case: ATF Admits To Supreme Court It Changed Definitions

BY Herschel Smith
2 months, 1 week ago

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.

Gun Owners of American Petition Supreme Court Over Bump Stock Ban

BY Herschel Smith
7 months ago

Good.  This was always going to happen, it should be sooner rather than later.

They’ll get a good dose of the facts now, including the pesky one on the FBI refusing to allow the ATF to examine the weapons allegedly used in the Las Vagas shooting.

If they do any research at all, they’ll find out that the Las Vegas shooting was a rolling gun battle all the way down main street, not a shooting from a hotel window.  That whole event is full of things the FedGov doesn’t want you to know.

And by the way, never forget that Donal Trump gave you the bump stock ban, and the corollary empowered ATF who now feels no compunction about making up law out of whole cloth – because Trump gave them permission to do it.  Donald Trump owns the bump stock ban and the current ATF.  It’s his.  It belongs to him.  It has his name on it.

I do wish that my name could be on this brief as a petitioner, but I never felt compelled to own a bump stock – until now so I could be on that brief.

Here is the brief.

Newsletter: Trump Doubles Down on Bump Stock Ban

9 months, 2 weeks ago

His ego is incredible. He’s not stupid but so self-centered that he’s unwilling to learn; he’s an ignoramus. That’s not name-calling; it’s the correct term. Same with vaccines and shutting down the economy.

Former President Donald Trump defended his decision to unilaterally ban bump stocks, which he called “very unimportant,” during a CNN town hall on Wednesday night.

The Republican presidential primary frontrunner didn’t turn back on his support for the ban, which has since been found unconstitutional by two federal appeals courts. He said he consulted with the National Rifle Association (NRA) before issuing an order to the ATF to find a way to outlaw the devices. He said the group was supportive of his effort.

“As you know, the bump stocks are actually a very unimportant thing,” Trump said. “NRA I went with them, and they said, ‘it doesn’t mean anything, or actually all they do is teach you how to shoot very inaccurately.’ So, we did that.”

It’s a bill of accuracy.

Still, former President Trump defended his record on guns.

“There’s been nobody that’s protected the Second Amendment,” he said. “There’s, you know, like I have I protected through thick and thin, not easy to do.”

He later nods to Red Flag laws by bringing up “mental health.”

Sixth Circuit Strikes Down Bump Stock Ban

BY Herschel Smith
10 months ago

Always remember that you have Trump to thank for the bump stock ban, and the corollary empowered ATF making law out of whole cloth.

Just today, the Sixth Circuit struck down the bump stock ban.  Two of the judges decided in favor of the plaintiffs because of the doctrine of lenity.  I disagree with that.  I think the law is very clear and adding a piece of plastic to a rifle doesn’t convert it to a machine gun under the statutory language.  The third judge said it better.

But I would go further. As explained by Judge Murphy in Gun Owners of America, Inc. v. Garland, the best reading of the statute is that Congress never gave the ATF “the power to expand the law banning machine guns through [the] legislative shortcut” of the ATF’s rule at issue in this appeal, see Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (the Rule). See 19 F.4th at 910 (Murphy, J., dissenting). Simply put, under the statute as it currently reads, the addition of a bump stock to a rifle clearly does not make it a machinegun.

26 U.S.C. § 5845(b). Under this definition, a bump stock cannot be a machinegun part because a bump stock by itself cannot increase the rate of fire of a rifle, nor does it change the mechanics of a “single function of the trigger.”

Here is Mark Smith celebrating the victory.

Fifth Circuit Destroys Bump Stock Ban

BY Herschel Smith
1 year, 1 month ago

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.


  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.

U.S. Supreme Court again spurns challenge to gun ‘bump stock’ ban

1 year, 3 months ago


The U.S. Supreme Court on Monday turned away another challenge to a federal ban imposed under former President Donald Trump on devices called “bump stocks” that enable a semi-automatic weapon to fire like a machine gun.

The justices declined to review an appeal by a group of firearms dealers and individuals in Minnesota, Texas and Kentucky after a lower court rejected their argument that the government had violated the U.S. Constitution’s Fifth Amendment “takings clause” by effectively taking their private property without just compensation.

Trump’s administration moved to reclassify bump stocks as machine guns, which are forbidden under U.S. law, in a rare firearms control measure prompted by a 2017 mass shooting in Las Vegas. The Supreme Court in 2019 declined to block the ban from going into effect. The justices last month rejected appeals by a Utah gun lobbyist and firearms rights groups of lower court rulings upholding the ban as a reasonable interpretation of a federal law prohibiting machine gun possession.

Having banned the bump stock, now the BATF is coming for arm braces. Next, it’ll be the six-position AR stock. If this isn’t stopped, gunstocks of every kind will be outlawed by fiat. Perhaps you say that’s ridiculous? But if we’re playing chess and not checkers, it sounds like a “reasonable” pathway to outlawing rifles altogether.

To quote WoG,  “And thanks again, Donald.”

ATF will Lose Bump Stock Case before Supreme Court

BY Herschel Smith
1 year, 4 months ago

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.

Supreme Court To Deal With Bump Stocks?

BY Herschel Smith
1 year, 5 months ago


… 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.

Sixth Circuit Bump Stock Ruling

BY Herschel Smith
2 years, 8 months ago

Here it is.

A majority of the Judges of this Court in regular active service has voted for rehearing en banc of this case. Sixth Circuit Rule 35(b) provides as follows: The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal. Accordingly, it is ORDERED, that the previous decision and judgment of this court are vacated, the mandate is stayed, and this case is restored to the docket as a pending appeal.

Short and to the point.  This isn’t over yet.  It shouldn’t be.  It was an awful usurpation of power, and a stupid thing for Trump to do.

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