Tag: atf

Jonathan Turley: Fifth Circuit Rejects Bump Stock Ban

From attorney Jonathan Turley comes this article on the Fifth Circuit Federal Appeals court rejecting the ATF ban on bump stocks.

The United States Court of Appeals for the Fifth Circuit has handed down a major opinion in Cargill v. Garland, No. 20-51016, ruling 13-3 that the ATF ban on bump stocks is unlawful. The en banc decision found that a bump stock may be many things but it is not a machine gun.

On December 18, 2018, the ATF issued a rule that bump stock would now be considered unlawful as machine guns and gave bump stock owners 90 days to surrender the devices. After that deadline, possession would be treated as a federal crime. The specific statement read, in part:

The Department of Justice is amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to clarify that bump-stock-type devices — meaning “bump fire” stocks, slide-fire devices, and devices with certain similar characteristics — are “machineguns” as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968 because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.

On January 6, 2023, the Fifth Circuit handed down its decision rejecting the rule. It explained the technical aspects for the case as well as the clear shift in interpretation by the ATF:

“A bump stock is a firearm attachment that allows a shooter to harness the natural recoil of a semi-automatic weapon to quickly re-engage the trigger after firing, enabling him to shoot at an increased rate of speed. When ATF first considered the type of bump stocks at issue here, it understood that they were not machineguns. ATF maintained this position for over a decade, issuing many interpretation letters to that effect to members of the public.”

Judge Jennifer Walker Elrod wrote in her majority opinion that “[p]ublic pressure to ban bump stocks was tremendous” after the mass shooting in Las Vegas on October 1, 2017. However, “[a] plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machinegun’ set forth in the Gun Control Act and National Firearms Act.”

The majority further explained:

The Government’s regulation violates these principles. As an initial matter, it purports to allow ATF—rather than Congress—to set forth the scope of criminal prohibitions. Indeed, the Government would outlaw bump stocks by administrative fiat even though the very same agency routinely interpreted the ban on machineguns as not applying to the type of bump stocks at issue here. Nor can we say that the statutory definition unambiguously supports the Government’s interpretation. As noted above, we conclude that it unambiguously does not. But even if we are wrong, the statute is at least ambiguous in this regard. And if the statute is ambiguous, Congress must cure that ambiguity, not the federal courts.

The holding was supported by a rule of lenity that “penal laws are to be construed strictly.” She noted that, as in United States v. Wiltberger, the Court had long followed the rule which Chief Justice Marshall described as “founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.”

Thirteen judges agreed with the conclusion though twelve (Chief Judge Richman and Judges Jones, Smith, Stewart, Elrod, Southwick, Haynes, Willett, Ho, Duncan, Engelhardt, and Wilson) reversed on lenity grounds while eight members (Judges Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham, and Wilson) reversed on the ground that federal law unambiguously fails to cover non-mechanical bump stocks…(article continues)

The Machine Gun Nest: Biden’s Ghost Gun Rule is Dead on Arrival

The Machine Gun Nest writes about the Biden administration’s latest attempt to strip rights from the American people in Biden’s Ghost Gun Rule is Dead on Arrival Thanks to the 0% Receiver. It has long been recognized in the USA that a person may manufacture a firearm for their personal use with no need for any licensing, registration, or serial numbering. Gun controllers, however, are willfully ignorant on the current laws, historical context, and even the simplest technical understanding of firearms.

Yesterday, President Biden, the Department of Justice, and the ATF announced the details of their new 364-page rule for the redefinition of “frame or receiver.” In doing so, they have decided to attempt an illegal rewrite of the 1968 Gun Control Act. 

If you’ve been paying close attention to headlines the past few weeks, you may have noticed a surge in articles pertaining to “ghost guns.”

The corporate media has been setting up Biden for an easy “win” on guns with this new rule. Likely because of Biden’s low poll numbers headed into the midterms. 

Initially announced in April of 2021, almost a full year later, we’re finally able to see what sort of egregious gun control has been put together for the law-abiding gun owner. 

The rule stems from the gun control lobby’s obsession with home-built firearms. The problem here, though, is that to regulate privately made firearms, or “PMFs” as they’re defined in the new rule, the ATF had to cast an extremely wide legal net. 

In the 364-page rule, we can see that the Biden admin intends to ban “ghost guns” by creating a new class of highly regulated items by redefining the term “firearm” to include parts and collections of parts that the ATF now considers to be “readily” convertible into functional firearms. 

The example used in the press conference was a Polymer80 kit, which quickly sold out of all available models after the announcement of the rule change. 

It’s important to note that from what we can tell from the rule change and the opinion of others in the know, this rule does not ban possession of firearms made from 80% kits. It also does not mandate the serialization of those already made firearms or 3D printed items for personal use. What it does do is require the serialization of 80% kits that are in possession of Federal Firearms Licensees (also known as FFLs) and manufacturers. It’s interesting because the expected outcome of this rule, as Biden pitched, was the complete and absolute ban of “ghost guns” altogether. 

In addition, ATF has commanded Federal Firearms Licensees to hold 4473 records on-site indefinitely. This small change may go unnoticed by many, but this is a significant step towards a legitimate registry. This action shouldn’t surprise many gun owners, who already know that these rule changes are not about saving lives; they’re only about the consolidation of power.

Firearms Policy Coalition had this to say: 

“Far from “clarifying” anything, the rulemaking tortures simple terms from law into multi-part definitions, with newly injected sub-terms like “readily” having their own lengthy definitions. This is clearly an attempt to sidestep Congress, as Biden even indicated in his remarks today.”

Here’s the irony of the situation, though. Regardless of how overly complex it is or how wide a legal net the ATF decides to cast, this rule change will have little to no effect. 

That’s because of the 0% Receiver. 

In response to the announcement of the Biden Admin’s proposed rule change, Defense Distributed decided to shift its focus to the creation of 0% receivers. 

Cody Wilson of Defense Distributed had this to say about the new rule:

“The receiver rule is an illegal attempt to rewrite the GCA outside of Congress. Nevertheless, Ghost Gunner anticipated this maneuver and is now shipping Zero Percent receivers which perfectly defeat the rule from day one. Americans will always be able to build firearms in the privacy of their homes.”

This rule change has caused a surge in demand for Defense Distributed’s Ghost Gunner 3. The Ghost Gunner is a small CNC Machine that users can insert a bar of aluminum, press a button, and after the machine mills out the metal, have a completely legal, privately made, non-serialized firearm frame ready to go. 

Because all the Ghost Gunner 3 needs is a block of aluminum to produce the firearm frame, the Biden Admin & ATF would need to regulate blocks of aluminum to stop people from producing privately made firearms. While the DOJ may be able to convince a judge that an 80% lower is likely to be made into a gun, a block of aluminum is a much harder sell. 

The same can be said for 3D printing. Are we to assume that PLA plastic is to be regulated as a firearm? 

Because gun control has a hard time passing in the legislative branch (even with all three branches of government controlled by democrats currently), the Biden admin has resorted to governing by executive fiat, using the executive branch to pass new “regulations” using existing law. 

As of right now, the rule change has 120 days to take effect after it hits the federal register. Many groups such as Gun Owners of America & Firearms Policy Coalition have already announced their intent to sue the Federal Government over these new rule changes.

Ammoland: ATF Ponders Changing Definition of What Is a Firearm To Target Growing Gun Diversity

Ammoland reports: ATF Ponders Changing Definition of What Is a Firearm To Target Growing Gun Diversity

Several large type-7 Federal Firearms Licensed manufacturers, The National Shooting Sports Foundation (NSSF), and Polymer80 met with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) today.

Although the detailed discussions of the meeting are unknown at this time, AmmoLand News received leaked emails from our sources that show that the ATF is seeking a new definition of a firearm. Joe Biden has targeted so-called “ghost guns” and semi-automatic rifles and recent days. Sources say he is pushing to accelerate those changes by using the ATF as a stop-gap for stalled federal legislation.

The email states: “As you know, under current regulation 27 C.F.R. 478.11, the definition of firearm frame/receiver states that it is that part of a firearm which provides housing for “the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.”

The email goes on to state that many frames/receivers do not meet this definition. The meeting was to solicit input and feedback on the new definition to include all current firearm frames/receivers on the market.

The Wallstreet Journal incorrectly reported that the meeting was to be about targeting unfinished (80%) frames. Actual emails received indicate the “listening session” with ATF was more about the growing diversity of new gun styles and how to serialize more gun parts. Including Rifle Chassis Systems but also the long unchanging history of the firearms’ receiver definition and the need for updates to reflect “changes in technology”.

An AR-15 lower receiver houses the hammer and firing mechanism while the upper receiver houses the bolt. In a FAL, the upper receiver is the serialized firearms. The meeting seems to be stepping in the direction to change the discrepancies between different guns.

Recently there have been multiple cases where the ATF has arrested someone for selling an AR-15 lower receiver. The defendant challenges the ATF because an AR-15 lower receiver doesn’t meet the definition of a firearm. The ATF quietly dropped the cases without comment.

One case that stands out is the ATF arrest of Joseph Roh for illegally manufacturing AR-15-style rifles in Los Angeles. He challenged the ATF’s classification of an AR15 lower receiver as a firearm. Instead of fighting the case, the ATF quietly dropped it. Most believe that the ATF was worried a judge would decide in Roh’s favor unending gun control efforts.

The 60 plus person video meeting included multiple firearms industry manufacturers and industry representatives including Larry Keane of the National Shooting Sports Foundation (NSSF) who commented:

“As the firearm industry’s trade association, NSSF is always willing to engage with ATF in a dialogue concerning regulatory matters that impact our industry members businesses so that we can protect their legal and business interests.”

Changing The Definition of What Is A Firearm

Sources inside the ATF tell us that the agency is considering changing a firearm’s definition to encompass the upper instead of the frame. The ATF reasons that anyone can finish an 80% frame or even 3D print one, but most of the general public do not possess the tools to complete a slide.

Safety Harbor Firearms produces a .50 caliber magazine-fed upper for the AR-15 called the SHTF 50. The ATF stepped in and insisted that the upper was a firearm and forced the company to serialize it. This decision made both the upper receiver and lower receiver a gun. The ATF reasoned that the company made the upper too much like a bolt action rifle.

Safety Harbor Firearms SHTF 50 Mag Fed Upper
Safety Harbor Firearms SHTF 50 Mag Fed Upper

The proposed changes have made their way into the hands of Everytown for Gun Safety even though it is not currently public. The gun-control group seems to be happy with the proposed changes. It isn’t clear how they managed to get the documents.

Prince Law: ATF to Institute Rulemaking Regarding Stabilizing Braces and Require Registration of Currently Owned Braces

This article comes from the law firm of Prince Law. ATF to Institute Rulemaking Regarding Stabilizing Braces and Require Registration of Currently Owned Braces

In a 16 page draft copy of proposed rulemaking specifying “Objective Factors for Classifying Stablizing Braces”, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has proposed entering into rulemaking to delineate the objective factors considered when “evaluating firearms with an attached stabilizing brace to determine whether they are considered firearms under the National Firearms Act (‘NFA’) and/or the Gun Control Act (‘GCA)” and the Department of Justice’s plan to “subsequently implement a separate process for current possessors of stabilizer-equipped firearms to choose to register such firearms in compliance with the NFA.”

While the proposed rulemaking has not yet been published in the Federal Register, it is expected to be published in the upcoming weeks and interestingly – seemingly in violation of the law – ATF is only providing a 14 day comment period, at least, pursuant to the draft copy. “Written comments must be postmarked and electronic comments must be submitted on or before [INSERT DATE 14 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].” It would not surprise me if the proposed rulemaking is published on December 24th, so that most interested individuals and businesses will be distracted by the holidays and unable to respond in the two week response period. To prevent against these types of shenanigans, the Gun Control Act mandates a 90 day comment period.

As more information becomes known, we will update this blog post or publish new ones, depending on the development.

If you or your company wish to file a comment in support or opposition to a notice of proposed rulemaking by a federal administrative agency, contact Firearms Industry Consulting Group today to discuss your rights and legal options.

Truth About Guns: ATF Brass Recommended Targeting Braces, 80% Lowers Under a Biden Administration

From The Truth About Guns comes this report, Confirmed: ATF Brass Recommended Targeting Braces, 80% Lowers Under a Biden Administration

Yesterday, John Crump published a report at Ammoland.com regarding a recent conference call between the ATF’s top brass and the “Biden transition team.” To be clear, no matter what you may read in the media, Joseph Robinette Biden Jr. is not yet the president-elect. At least not yet. None of the 50 states have certified their election results and the electoral college isn’t due to vote until December 14.

That made the conference call in question both premature and inappropriate. We’ve talked to people with direct knowledge of what was discussed on the call and can confirm Crump’s report that the higher ups at the ATF told the Biden boys they want to target two items should their boss occupy the oval office in January. Number one on the hit list is pistol arm braces and number two is 80% lowers.

The people we’ve spoken to confirm that the push to ban these items is coming from the top two seats at the ATF — acting Director Regina Lombardo and Associate Deputy Marvin Richardson. Also on board with banning these items are three members of the bureau’s general counsel’s office — Chief Counsel Joel Roessner, Deputy Chief Counsel Pamela Hicks and Associate Chief Counsel James Vann.

Both of these items have, of course been legal for manufacture and sale to the public for years. The ATF itself approved the sale of pistol arm braces eight years ago. Since then, millions have been sold and hundreds of people in the industry have jobs that are based on the manufacture and sale of braces.

As for 80% lowers, it’s always been legal for Americans to build their own firearms for their own use. Only a couple of state require serialization and registration of home-built guns now.

An 80% lower is a partially-finished block of aluminum. The buyer is then required to drill and mill the lower to make it functional for use as part of a pistol or rifle. If 80% lowers are banned, would 75% lowers still be legal? How about 70%? Will we have to regulate the sale of all billet aluminum in the country in case someone decides to use it to fashion a gun?

To ban these items, the ATF would have to reverse itself, doing a 180 on scores of opinions and rulings it has been issuing regarding these items for years. Of course, that didn’t stop them when they were ordered by the Trump White House to regulate bump stocks the same way as they do machine guns.

What such a ban would look like is anyone’s guess at this point. They could ban only new sales of the items, letting current owners keep and use them. Or, they could ban their possession, as was done with bump stocks, requiring owners to turn them in or destroy them.

Either way, if Biden is inaugurated and orders the ATF to ban these items, it will touch off a new round of lawsuits from gun rights orgs and owners of the newly-verboten equipment. Thousands of them will soon be sitting on lake beds all across the country.

In the mean time the White House apparently has the detail of what was discussed between the ATF brass and the Bidenbots. The President would be well within his rights to clean house at the ATF, just as he’s recently done at the DOD.

That, of course, would be a calculated risk. If the court challenges and recounts go his way, he’d be able to install replacements that have more respect for the rule of law, not to mention the right to keep and bear arms. But if things don’t go his way and Biden takes office in January, the replacements could well be worse than the asses that are currently in those seats.

It’s a great time to be alive.