[ARCHIVED THREAD] - Forbes Article - Bump Stock Rule Puts Constitution In The Crosshairs (Page 1 of 4)
Posted: 3/7/2019 11:52:46 AM EDT
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This is one of the best articles I've read on the ban. https://www.forbes.com/sites/markchenoweth/2019/03/01/bump-stock-rule-puts-constitution-in-the-crosshairs/amp/ |
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Pandora's box for sure, text pasted, worth reading;
What's next on the ban by a stroke of a pen list. . . . . . Speaker of the House Nancy Pelosi recently warned Republicans that if a GOP president can declare a national emergency over a wall on the southern border, the next Democrat president could declare one over gun violence. Her threat envisioned future gun control actions without Congress. But that’s already happening—and it has made a shambles of constitutional lawmaking. The Department of Justice (DOJ) issued the Bump Stock Type Devices Final Rule late last year. This criminal regulation retroactively bans ownership of bump stocks, an accessory that helps shooters fire semi-automatic weapons more quickly by bumping the trigger with their finger when the gun recoils. When the 90-day compliance window closes on March 26, lawful purchasers of some 520,000 bump stocks must have either surrendered their devices or destroyed them. Absent judicial relief, this regulation will convert all remaining owners of bump stocks into felons without action by Congress. But the various lawsuits pending against the rule are not about guns or gun rights. Rather, these suits ask whether DOJ may create new criminal laws without involving Congress. The Constitution’s answer is a firm no. New criminal laws must clear the twin constitutional hurdles of “bicameralism” (passage by both houses of Congress) and “presentment” (Presidential signature or veto override). Even a staunch gun control advocate like Senator Dianne Feinstein has recognized that Congress must be the one to act here: “Until March 2018, ATF maintained that bump stocks could not be banned through administrative action. Legislation is necessary to ensure a ban is implemented and regulations are not tied up in court.” Likewise, the Obama Administration faced tremendous pressure from allies to ban bump stocks via regulation but decided that it could not lawfully do so unilaterally. A pen and a phone would not suffice for this. Nevertheless, current policymakers have defined two allegedly ambiguous terms in the 1934 National Firearms Act in order to ban bump stocks. Despite 80+ years of clarity and dozens of federal cases deeming the statute unambiguous, DOJ is trying to create a loophole in the definition of “machinegun” to fit bump stocks into it. Usually it’s criminal defendants who try such stunts to exempt their machineguns from the ban. This time it’s DOJ claiming ambiguity—and eroding respect for the rule of law. Worse yet, in this week’s case out of the federal district court in D.C., the judge invoked the Chevron doctrine in deferring to DOJ’s definition of the terms “single function of the trigger” and “automatically.” DOJ’s new definitions are awkward at best, but Chevron poses the more nettlesome problem. This embarrassing precedent tells federal judges to defer to the executive branch’s statutory interpretation whenever the judge decides that a statute is ambiguous and the agency’s interpretation is reasonable. There is not room here for a complete takedown of Chevron, so suffice it to say that the D.C. plaintiffs did not enjoy due process of law when their judge deferred to the other party in the case rather than providing her independent judgment. Besides which, the Chevron doctrine should not even come into play where a criminal statute is concerned. The Rule of Lenity dictates construing ambiguity in a criminal statute in favor of defendants. And make no mistake; there will be defendants. DOJ has conceded in court that it will use these same definitions to go after any bump stock owners who hold onto their devices. Therein lies a future injustice. It is practically certain that some number of lawful purchasers will not get the word that bump stocks were banned. They will show up at a gun range to fire one, be seen there by an ATF agent or other law enforcement official and get arrested. The penalty is up to 10 years in prison and a permanent ban on gun ownership. These innocent owners will have no reason to have anticipated a ban—at least not a retroactive one. When Congress banned machineguns themselves in 1986, it did not do so retroactively. This fact raises two further questions. First, how can a statute that did not ban anything retroactively later be construed to authorize banning bump stocks retroactively? It cannot, at least not when interpreted reasonably. Perhaps the greatest indignity to the Constitution in these cases is the idea that a statute that quite deliberately did not ban machineguns retroactively can be rewritten later by a federal agency to ban bump stocks retroactively. DOJ—and the D.C. district court—rely on the fiction that the statute is ambiguous when it is just silent. Second, were Congress to ban bump stocks, would it do so retroactively and with the same penalty structure as owning an actual machinegun? History says no, especially since Congress has tried and failed to ban bump stocks several times—and those bills were rarely retroactive. But DOJ’s loopholing requires it to use the same penalty structure because DOJ knows that courts will not let it get away with altering the length of sentences. DOJ often assures that prosecutorial discretion will prevent injustice. Somehow trust in that is hard to muster when the Department is already mangling the Constitution to rewrite the statute. Congress is generally not willing to turn law-abiding citizens into felons, because Congress has to face voters. Administrative agencies like ATF and DOJ face no voters and show no such qualms. Bump stock owners risk prison as a result. Everyone else risks the terrifying consequences of allowing DOJ to write criminal laws without Congress. After all, if DOJ can create the bump stock rule, what stops it from bypassing Congress to create criminal laws on other subjects? Barrels of ink have been spilled criticizing the administration’s national emergency declaration to transfer some funds for building a wall on the southern border. The bump stock ban sets a far worse precedent, yet comparatively little alarm has been raised. No matter one’s feelings about gun control policy, everyone should oppose rapid-fire destruction of constitutional lawmaking. Our liberty is in jeopardy. |
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Fucking horrible precedent. And done at the direction of our POTUS. Trump has done a lot of good things but he royally fucked this whole thing up. Not that legislation by regulation is anything new but.... Hopefully a legal challenge short circuits this whole process and maybe even results in collateral damage to things like the NFA and state level AWBs. Not holding my breath but.... |
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All you anti-Bumpsters...
Just change the word "bump stock" with "high capacity magazines"...because left unchecked, it will be sooner than you think. all you guys who went out and raped credit cards and savings accounts buying lower receivers, you invested in vapor. |
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The article missed the 5th Amendment "takings clause" issue totally...which the Federal District Judge in Duncan vs. Becerra in the 9th Circuit did NOT MISS in granting a preliminary injunction against the banning of grandfathered 10 round magazines in California.
When you have to destroy your supply of standard capacity Glock, SIG and AR mags or become of felon you'll recall that happened to bump stocks. 
Fuck DJT and primary him in 2020 or get an AWB (if not sooner). Trump is a gun banner and his AG is anti-gun on top of that! |
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As we all know when it comes to guns and public outrage corrupt politicians and judges just do not care about the rule of law.
Can anyone name another product in the history of this nation that was banned/outlawed by congress or with the stroke of a pen without compensation? As I understand it, even when they passed Prohibition individuals were allowed to keep what alcohol they had in their homes. |
| SCOTUS is to hear 3 cases related to the 2nd amendment this year. One related to "may issue," a NY case related to having the freedom to transport firearms outside of the home and the third case related to the discretion that govt agencies can or can not exercise in implementing their core mission. The third case will include the ATF and situations such as bumpstocks. |
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A lot of us have said from the beginning that it isn't about bump stocks, it's about the precedent (unconstitutional precedent) this President has established, if this is allowed to stand. Shifting definitions of "readily restored to shoot" and "sporting purpose" were approved by the courts every time the government saw fit to do so. There is no difference in principle between those "re-interpretations" and this one. |
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He presents Obama as superior because Obama didn't ban bump stocks. That's Not true. Obama would have banned everything except for the fact that Obama was lazy and incompetent. |
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One of the few things obama got right. His lack of movement on gun control nationally makes me think he either remembered and respected the history of gun control and how it gutted the democrat party, or less likely he's very secretly one of us. Just remember, whatever these people believe is right in their hearts, they believe in power more. |
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We need an NRA logo with a "strike through" to indicate a life member that opposes the present NRA leadership after this bump stock nightmare. The NRA didn't seem to lift a finger to get grandfathering, registration or even compensation. I’m considering to sign up for 2 more years or a life membership to be able to. But not sure what’s the right course here for us |
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Quoted:
All you anti-Bumpsters... Just change the word "bump stock" with "high capacity magazines"...because left unchecked, it will be sooner than you think. all you guys who went out and raped credit cards and savings accounts buying lower receivers, you invested in vapor. |
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A lot of us have said from the beginning that it isn't about bump stocks, it's about the precedent (unconstitutional precedent) this President has established, if this is allowed to stand. Receivers; HWS; Shockwave; ____________________________________ ____________________________________ |
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Quoted: Another name for a lower receiver: machine gun host, not far fetched. Quoted: Another name for a lower receiver: machine gun host, not far fetched. Thankfully, that's also the point where you're in for a penny, in for a pound... and MGs will be very common indeed. Why not? ETA: Usually it’s criminal defendants who try such stunts to exempt their machineguns from the ban. This time it’s DOJ claiming ambiguity—and eroding respect for the rule of law. |
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Can we get a link without google in the url? |
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He presents Obama as superior because Obama didn't ban bump stocks. That's Not true. Obama would have banned everything except for the fact that Obama was lazy and incompetent. A Republican brought about gun control this time around, no getting away from that. |
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With the President not actually being a professional politician, does he really understand what is at stake here? What about Don Junior? |
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All you anti-Bumpsters... Just change the word "bump stock" with "high capacity magazines"...because left unchecked, it will be sooner than you think. all you guys who went out and raped credit cards and savings accounts buying lower receivers, you invested in vapor. Was trying to explain this to a family member (he is a Trump can do no wrong idiot) but he "hates" bump stocks and believes Trump when he says that they should be banned at all cost. He is just not listening and seems dense (like many Trump at all cost supporters) to what a dangerous precedent that it puts in place. He is also a HUGE NRA and Wounded Warrior supporter. I do not own a bump stock and do not care for bump-firing, just a waste of good ammo, IMHO. |
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Forgive the long post. Copy/pasted from GOAemail on the case:
GOA’s attorney Rob Olson did a fantastic job representing gun owners in court. And he repeatedly hammered the ATF for exceeding its authority and for capriciously reversing itself in banning firearms-related items that were once legal to own. Olson also made it clear that hundreds of thousands of innocent bump stock owners are now in danger of becoming felons after March 26. So given this looming deadline, GOA is requesting an injunction from the judge, which would stop ATF from enforcing the ban when the turn-in period ends. Judge Appears Wary of ATF Overreach During oral arguments, Olson had to vacillate between fine points of legal doctrine to countering the government’s talking points that could have come from Moms Demand Action. For example, much of the discussion with the judge centered around a doctrine known as “Chevron deference.” If you’re not familiar with this guideline, you might wonder what this has to do with bump stocks. But, in fact, it has quite a bit to do with the subject at hand. “Chevron deference” is a doctrine that essentially gives a federal agency tremendous latitude in interpreting and applying a federal statute. Olson consistently made the point that the ATF did NOT deserve deference ... that the agency was misapplying the federal statute regarding bump stocks ... and, more importantly, that the ATF was effectively changing the statutory definition of what a machine gun is. This argument seemed to resonate with the judge, who appeared unwilling to grant deference to the ATF. Why a Bump Stock is NOT a Machine Gun Another much-discussed topic centered around the very nature of a bump stock. The judge asked GOA’s counsel if a bump stock allows an uninterrupted automatic cycle of fire -- as a machine gun would. Olson said NO. He explained that a bump stock allows for repeated SEMI-automatic fire in a rapid manner, where each function of the trigger produces one bullet out the end of the barrel -- albeit occurring in rapid, repeated succession. The government took the contrary view, claiming that a bump stock starts in motion a continuous chain of successive fire. More to the point, Olson noted that while an untrained shooter could fire an automatic weapon with one hand -- by simply pulling the trigger back -- no person could repeatedly bump fire a semi-automatic weapon with just one hand. Even the ATF has had to concede in its written regulation that bump firing a weapon requires the shooter to use both hands. And this gets to the core distinction between a bump stock and an automatic weapon. The U.S. code defines a machine gun as a firearm that can shoot “automatically more than one shot, without manual reloading, by a single function of the trigger.” One can fire a machine gun with only one hand because the internal mechanism in the weapon will produce automatic fire with a “single function” of the trigger. But to bump fire a semi-auto, the shooter must use two hands, and in most cases, spend time learning how to actually perfect his individual technique for each different bump stock firearm. Anyone who has ever bump fired a semi-auto knows there is a learning curve in determining the appropriate amount of force with which to push forward on the firearm using the non-trigger hand. So in other words, it’s the shooter who creates the bump fire effect. Because “bump firing,” first and foremost, is a technique, and not a product that is sold over-the-counter. But that’s not the case with a machine gun. A person who has never touched a gun could easily fire an automatic weapon because it’s the internal mechanism that actually allows repeated rounds to be fired “automatically.” The back-and-forth between Olson and the judge on this point was crucial and could play a critical role in the judge’s decision-making process. No Evidence that Bump Stocks are a Threat to Safety One of the government’s lawyers brought up the Las Vegas shooting from 2017 as a reason to ban bump stocks. He claimed that the inherent dangerousness of bump stocks necessitated a ban for the sake of “public safety.” Of course, if this logic were to prevail, the government could justify banning all weapons -- handguns, rifles, shotguns, etc. -- given that all these weapons are inherently “dangerous.” GOA’s attorney countered by telling the judge there is no actual proof of one recorded instance where bump stocks have been used in a crime. Olson even cited the lack of FBI and ATF statements, studies or reports to demonstrate that there is no conclusive evidence that a bump stock was actually used by the Las Vegas shooter. This was something of a “mic drop” moment, because when given the chance to respond, the government’s lawyer could not -- in fact, he refused to -- counter Olson’s statement on this point. Thus, the oral arguments in the Western district federal court on March 6 established unrebutted testimony that, to date, there is no proof of any documented case where a bump stock was used in a crime. Even if it is one day determined conclusively that the Las Vegas shooting was the first case where a bump stock was used in a crime -- it would still remain the ONLY case. And this ONE case would hardly then represent an imminent “danger to public safety.” Especially when one considers that “bump firing” a weapon can be achieved without bump stocks, and that these items have been used by hundreds of thousands of gun owners in a perfectly safe manner. Bump Stock Regs Open Door to Banning AR-15s Finally, one of the most crucial moments centered around a discussion involving the potential threat to AR-15s. GOA has repeatedly warned that the ATF’s ban on bump stocks can be easily used by a future anti-gun administration to ban most, if not all, semi-automatic rifles. Olson repeated this warning to the judge and noted that the threat to AR-15s would inextricably follow from these regulations. While the government lawyer hotly contested this assertion, Olson noted that there are other common, household items that can be used to bump fire an AR-15 -- such as, rubber bands, belt loops, etc. So what happens if a homeowner has several AR-15s and a box of rubber bands? Olson noted that the ATF has already successfully prosecuted people who owned unassembled parts that could later be used to (theoretically) convert a firearm into a machine gun. In other words, the ATF has already shown its true colors on this point. So if these regulations are eventually allowed to stand, gun owners need to beware. Don’t be surprised if the ATF -- say, under a President Kamala Harris administration -- deems that any homeowner who possesses both AR-15s and rubber bands has committed a felony because he or she has “constructively intent” to build a machine gun. You can be sure that, if this were to occur, the ATF will be called upon to provide “the best understanding of the law” at that particular time. And all of its prior promises and representations -- that the rule does not apply to semi-autos -- will be worthless. Judge Questions ATF for their Change in Position ATF officials are well-known for changing their positions “on a dime.” And they are guilty of doing this in regard to their position on bump stocks. In court, the government claimed their prior opinions approving possession of bump stocks in the past were correct based on what they knew, but now they are “not the best understanding” of the law. And this led to another “mic drop” moment, when the judge called them out on their past behavior. The judge dryly wondered, out loud, why he should believe the ATF’s position today. The ATF claims that judges like him must adopt the agency’s current interpretation on bump stocks. But ten years ago, the judge noted, the ATF was arguing the complete opposite, claiming that bump stocks were totally legal under federal law. It was a great point. And we can only hope the judge will take this point to heart -- that it’s ATF’s arbitrary interpretations that have changed over the years, and not federal law. Judges typically will not immediately issue their rulings, and this one was no exception. We can probably expect a decision within a week. What I’ve shared with you here is only the tip of the iceberg from our day in court. But it certainly represents the highlights of what took place. I want to thank you for helping keep Gun Owners of America on the frontlines |
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Direct link without the Google refer tag
https://www.forbes.com/sites/markchenoweth/2019/03/01/bump-stock-rule-puts-constitution-in-the-crosshairs/amp/ Please clean up the OP @Undefined |
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We need an NRA logo with a "strike through" to indicate a life member that opposes the present NRA leadership after this bump stock nightmare. The NRA didn't seem to lift a finger to get grandfathering, registration or even compensation. |
| I am glad to read that there are groups putting up a strong fight against these erroneous decisions by the ATF, stripping away our rights. Other than the NRA activism sticky, why is there not a forum dedicated to the other groups actually fighting for our rights? Hopefully there is one and I haven’t found it, but a single area with all of these court battles and the groups and people doing the fighting would be nice. Thanks to GOA and NOLO for all they’re doing. |