bumpstock ban process

Status
Not open for further replies.

DeepSouth

Random Guy
Joined
Jan 14, 2009
Messages
4,831
Location
Heart of Dixie (Ala)
As I understand the new regulations will take effect 90 days after being published in the Federal Register, I’ve read that is likely to happen this Friday. So I’ll assume that correct.

I also understand law suits are expected to be filed shortly thereafter, assuming that is also correct, my question is what happens next?

I doubt the issue will work all the way through the court system in that time, am I wrong on that? If not what happens when the 91st day gets here? Does it matter that the regulation change is being challenged at that time?
 
Not to my understanding, no. They will be illegal then until that is re-written. Whether it is enforced or not by your local law enforcement could vary maybe. But do not take my word as fact, I'm reading the same info as you.
 
A lawsuit seeking an injunction and declaration that the rule is invalid has already been filed primary by the Firearm Policy Coalition, Firearms Policy Foundation, Madison Society Foundation, and Damien Guedes (a bump-stock owner)... information can be found here, to include the complaint, motion for injunction, and exhibits: https://www.firearmspolicy.org/guedes-v-batfe

Having read the complaint, they are going after the Final Rule on several fronts:

COUNT I: MATTHEW WHITAKER’S APPOINTMENT AS ACTING ATTORNEY GENERAL VIOLATES 28 U.S.C. § 508 AND THEREFORE, HE LACKS THE AUTHORITY TO EXECUTE AND IMPLEMENT THE FINAL RULE

- Argument is self explanatory.

COUNT II: ADMINISTRATIVE PROCEDURE ACT VIOLATIONS

- Failure to provide underlying documents
- Failure to provide 90-day comment period (apparently coments were closed for the first 5 days?)
- Failure to consider Cost-Impact and Erroneous Cost Estimate
- Failure to provide a public hearing for FPC and FPF
- Final rule is arbitrary and capricious

COUNT III: VIOLATION OF ATF’S RULEMAKING AUTHORITY

- The ATF can't expand the definition of automatic beyond what is in the statute

COUNT IV: INTERNAL REVENUE CODE VIOLATIONS

- Argument goes into the weeds on taxable periods... didn't follow this one well.

COUNT V: TAKINGS WITHOUT JUST COMPENSATION

- Argument is self explanatory.

COUNT VI: EX POST FACTO VIOLATION

- Argument is self explanatory.

COUNT VII: VIOLATION OF THE CONTRACTS CLAUSE

- Manufacturers produced and marketed bump stocks with the assurance that the devices were legal.

COUNT VIII: VIOLATION OF FOIA

- Argument is self explanatory.

If the injunction is granted, then you could keep your bump stock after the 90 day time limit. If the rule goes into effect without an injunction, then you are violating the 1934 NFA. Fun, isn't it?

EDIT: The ATF has released guidelines on how to properly destroy bumpstocks here: https://www.atf.gov/rules-and-regulations/bump-stocks/how-to-destroy
 
Last edited:
The significant parts of the Firearms Policy Coalition complaint are Count III (the ATF contradicting the plain language of the statute) and Count V (a 5th Amendment "taking" without compensation). Notice the absence of a broad 2nd Amendment "infringement" allegation. I would realistically rate the chances of this lawsuit succeeding at less than 50%. Therefore it's also unlikely that a court would issue an injunction to stop enforcement until the case can be considered on the merits.
 
I'm really glad to see that everyone here is answering the question asked, not just spouting off what they think about the rule itself...

That's what you get in the Legal section... Frank would shut it down quicker than you could say "phooey" or "hogwash" if the discussion wasn't based on legal merits.

The significant parts of the Firearms Policy Coalition complaint are Count III (the ATF contradicting the plain language of the statute) and Count V (a 5th Amendment "taking" without compensation). Notice the absence of a broad 2nd Amendment "infringement" allegation. I would realistically rate the chances of this lawsuit succeeding at less than 50%. Therefore it's also unlikely that a court would issue an injunction to stop enforcement until the case can be considered on the merits.

I remember reading an opinion recently that came to the conclusion that firearms accessories not essential to the function of the firearm are not considered arms with respect to the second amendment... might have been the recent New Jersey magazine limits case.

There is also some crossover to Kisor v. Wilkie being picked up for cert by SCOTUS. Kisor v. Wilkie challenges Cheveron and Auer Deference with respect to regulatory rule making. Chevron Deference is mentioned in the complaint linked above.
 
That's what you get in the Legal section... Frank would shut it down quicker than you could say "phooey" or "hogwash" if the discussion wasn't based on legal merits.

Lol, good to know. I don't really care, I'm just kinda tired of reading how everyone's feelings are hurt, from BOTH sides of the debate.
 
Last edited:
The significant parts of the Firearms Policy Coalition complaint are Count III (the ATF contradicting the plain language of the statute) and Count V (a 5th Amendment "taking" without compensation). Notice the absence of a broad 2nd Amendment "infringement" allegation. I would realistically rate the chances of this lawsuit succeeding at less than 50%. Therefore it's also unlikely that a court would issue an injunction to stop enforcement until the case can be considered on the merits.
I remember reading an opinion recently that came to the conclusion that firearms accessories not essential to the function of the firearm are not considered arms with respect to the second amendment... might have been the recent New Jersey magazine limits case.

Found it! It was a 10th Circuit case regarding silencers - https://www.ca10.uscourts.gov/opinions/17/17-3034.pdf

But a more basic question remains: Even if silencers are commonly used by law-abiding citizens for lawful purposes, are they a type of instrument protected by the Second Amendment? According to Heller, “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms.” 554 U.S. at 582 (emphasis added). An instrument need not have existed at the time of the founding to fall within the amendment’s ambit, but it must fit the founding-era definition of an “Arm[].” Id. at 581 (citing two dictionaries from the eighteenth, and one from the nineteenth, century). Then and now, that means, the Second Amendment covers “[w]eapons of offence, or armour of defence,” or “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” Id. at 581 (alteration in original) (citations omitted). A silencer is a firearm accessory; it’s not a weapon in itself (nor is it “armour of defence”). Accordingly, it can’t be a “bearable arm” protected by the Second Amendment.
 
A lawsuit seeking an injunction and declaration that the rule is invalid has already been filed primary by the Firearm Policy Coalition, Firearms Policy Foundation, Madison Society Foundation, and Damien Guedes (a bump-stock owner)... information can be found here, to include the complaint, motion for injunction, and exhibits: https://www.firearmspolicy.org/guedes-v-batfe

Having read the complaint, they are going after the Final Rule on several fronts:

COUNT I: MATTHEW WHITAKER’S APPOINTMENT AS ACTING ATTORNEY GENERAL VIOLATES 28 U.S.C. § 508 AND THEREFORE, HE LACKS THE AUTHORITY TO EXECUTE AND IMPLEMENT THE FINAL RULE

- Argument is self explanatory.

COUNT II: ADMINISTRATIVE PROCEDURE ACT VIOLATIONS

- Failure to provide underlying documents
- Failure to provide 90-day comment period (apparently coments were closed for the first 5 days?)
- Failure to consider Cost-Impact and Erroneous Cost Estimate
- Failure to provide a public hearing for FPC and FPF
- Final rule is arbitrary and capricious

COUNT III: VIOLATION OF ATF’S RULEMAKING AUTHORITY

- The ATF can't expand the definition of automatic beyond what is in the statute

COUNT IV: INTERNAL REVENUE CODE VIOLATIONS

- Argument goes into the weeds on taxable periods... didn't follow this one well.

COUNT V: TAKINGS WITHOUT JUST COMPENSATION

- Argument is self explanatory.

COUNT VI: EX POST FACTO VIOLATION

- Argument is self explanatory.

COUNT VII: VIOLATION OF THE CONTRACTS CLAUSE

- Manufacturers produced and marketed bump stocks with the assurance that the devices were legal.

COUNT VIII: VIOLATION OF FOIA

- Argument is self explanatory.

If the injunction is granted, then you could keep your bump stock after the 90 day time limit. If the rule goes into effect without an injunction, then you are violating the 1934 NFA. Fun, isn't it?
Thank You good sir!

That’s what I was looking for.
 
It raises an interesting question. Leaving aside the whole issue of rulemaking authority, I could see the Government going to the court and arguing that the "correct" solution, registration of bump stocks as NFA items, is prohibited under Section 922(o). But there is a conflict between that section of Federal law and the amnesty power laid down in the original NFA'34. And if the court were to rule that 922(o) did not override the original amnesty power, this whole problem can be solved neatly, legally, and at minimal cost....
 
It raises an interesting question. Leaving aside the whole issue of rulemaking authority, I could see the Government going to the court and arguing that the "correct" solution, registration of bump stocks as NFA items, is prohibited under Section 922(o). But there is a conflict between that section of Federal law and the amnesty power laid down in the original NFA'34. And if the court were to rule that 922(o) did not override the original amnesty power, this whole problem can be solved neatly, legally, and at minimal cost....

In the Final Rule, the ATF discussed amnesty, on pages 89-91. In short, by banning the registration of new MG's for civilian sales, it was Congress' intent to preclude all avenues of new registrations, to include amnesty. New Congress can overrule laws passed by old Congress. I doubt a Judge would rule to say that the 1934 Congress holds power over 1986 Congress.

Don't get me wrong... I'd be the first person in line to register a bump stock as a MG if they opened up an amnesty period.
 
In the Final Rule, the ATF discussed amnesty, on pages 89-91. In short, by banning the registration of new MG's for civilian sales, it was Congress' intent to preclude all avenues of new registrations, to include amnesty. New Congress can overrule laws passed by old Congress. I doubt a Judge would rule to say that the 1934 Congress holds power over 1986 Congress.

The counterargument to that would be that if Congress had intended to bar an amnesty, they would have repealed that portion of the law. Some amnesty power is required, if for no other reason than to keep the paperwork straight. The NFRTR is known to have errors, particularly for pre-1968 transfers.
 
Found it! It was a 10th Circuit case regarding silencers -

But a more basic question remains: Even if silencers are commonly used by law-abiding citizens for lawful purposes, are they a type of instrument protected by the Second Amendment? According to Heller, “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms.” 554 U.S. at 582 (emphasis added). An instrument need not have existed at the time of the founding to fall within the amendment’s ambit, but it must fit the founding-era definition of an “Arm[].” Id. at 581 (citing two dictionaries from the eighteenth, and one from the nineteenth, century). Then and now, that means, the Second Amendment covers “[w]eapons of offence, or armour of defence,” or “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” Id. at 581 (alteration in original) (citations omitted). A silencer is a firearm accessory; it’s not a weapon in itself (nor is it “armour of defence”). Accordingly, it can’t be a “bearable arm” protected by the Second Amendment.

Which directly conflicts with the legal status of silencers, which are listed, regulated, transferred and treated for all other purposes as firearms in this country. Gotta love the double speak, huh? It's not a weapon when we seek constitutional protection, but it is a weapon where regulation and taxation are concerned :confused:
 
I remember reading an opinion recently that came to the conclusion that firearms accessories not essential to the function of the firearm are not considered arms with respect to the second amendment..
Found it! It was a 10th Circuit case regarding silencers -
I get what you're saying, and that would apply if bump stocks were "firearms accessories." But the ATF regulation explicitly says that they are "machine guns." Therefore, since machine guns are clearly "arms," bump stocks, on that basis, should come under the purview of the 2nd Amendment. Now, if despite being "arms," machine guns are excluded from 2nd Amendment protection on some other basis (see Scalia's dicta in the Heller case), that's another issue entirely. I still think the 2nd Amendment issue should at least be raised in the lawsuits challenging the bump stock ban.
 
But there is a conflict between that section of Federal law and the amnesty power laid down in the original NFA'34. And if the court were to rule that 922(o) did not override the original amnesty power, this whole problem can be solved neatly, legally, and at minimal cost....
No chance of that because a later enactment in conflict with an earlier enactment supersedes the earlier enactment. This is fairly cut and dried. The '68 Act amnesty provision is pretty much a dead letter unless 922(o) is amended.
 
Not to derail this wonderful discourse, but you folks need to look at the pictures of the various bumpfire devices that they show how to destroy. Some of those look really neat. I still think they are all kinda silly, but the ingenuity is remarkable. I personally like the Glock pistol bumpfire device.
 
I get what you're saying, and that would apply if bump stocks were "firearms accessories." But the ATF regulation explicitly says that they are "machine guns." Therefore, since machine guns are clearly "arms," bump stocks, on that basis, should come under the purview of the 2nd Amendment. Now, if despite being "arms," machine guns are excluded from 2nd Amendment protection on some other basis (see Scalia's dicta in the Heller case), that's another issue entirely. I still think the 2nd Amendment issue should at least be raised in the lawsuits challenging the bump stock ban.

Which directly conflicts with the legal status of silencers, which are listed, regulated, transferred and treated for all other purposes as firearms in this country. Gotta love the double speak, huh? It's not a weapon when we seek constitutional protection, but it is a weapon where regulation and taxation are concerned :confused:

Then consider, as the U.S. District Court for the Central District of Illinois did in United States v. Rock Island Armory, Inc., 773 F. Supp. 117 (C.D. Ill. 1991), whether the NFA, a taxation law, can survive review with respect to machine guns following the Hughes Amendment since the United states refuses to collect the tax on machine guns. The court held that it couldn't because the federal govt didn't have the inherent authority to regulate machine guns (only to tax them), the US didn't appeal, and for that small jurisdiction in Illinois, 922(o) is unconstitutional (which means nothing because Illinois has separate state law banning machine guns).

https://law.justia.com/cases/federal/district-courts/FSupp/773/117/1608375/

But that's really just trivia any more with the how the commerce clause is interpreted these days. Not to mention that the 10th and 11th circuits came to the opposite conclusion in United States v. Warner and Farmer v. Higgins, respectively.
 
bumpstocks always fell into the category "play stupid games - win stupid prizes". "technically" they were compliant with the verbiage of the NFA ruling... but obviously going well against the INTENT of that rule. And that's the fine difference... giving the finger to the ATF and exploiting a loophole in the wording of the rule is quite risky. A little of rewording and boom ... it's banned.

The SIG braces are a similar issue... looks a lot like a stock and can be shot using it like a stock... but hey.... it is a really awkward arm brace and a AR pistol instead of an SBR. * wink wink *

bumpstocks have zero use in a self-defense or SHTF scenario ... unless you feel that full-auto like fire with even less accuracy than full-auto is desirable. When they first came out I predicted that all it takes is one lunatic doing something bad and they will be gone. sadly i was correct.
 
bumpstocks always fell into the category "play stupid games - win stupid prizes".
That isn't the issue any more. The issue is the bad precedent that will apply across the board. I think we may see a rallying of conservative judges, the kind appointed by Trump at the behest of the Federalist Society, against this. That would be ironic.
 
bumpstocks always fell into the category "play stupid games - win stupid prizes". "technically" they were compliant with the verbiage of the NFA ruling... but obviously going well against the INTENT of that rule. And that's the fine difference... giving the finger to the ATF and exploiting a loophole in the wording of the rule is quite risky. A little of rewording and boom ... it's banned.

The SIG braces are a similar issue... looks a lot like a stock and can be shot using it like a stock... but hey.... it is a really awkward arm brace and a AR pistol instead of an SBR. * wink wink *

bumpstocks have zero use in a self-defense or SHTF scenario ... unless you feel that full-auto like fire with even less accuracy than full-auto is desirable. When they first came out I predicted that all it takes is one lunatic doing something bad and they will be gone. sadly i was correct.

Which is one of the opinions that had been reiterated ad nauseam in the General Discussion thread. Which was closed because it wasn't going anywhere.

Considering that this is the Legal forum, I'd hope that we can keep the thread alive to discuss the legalities surrounding the Bumpstock Rule and the associated legal challenges. I imagine that such opinions will do nothing more than flag the thread for closure.
 
I would honestly prefer that the ban doesn't get overturned/nullified. The precedent of the way it was gone about I don't like, but the ban itself is really a good thing for RKBA in the long game. Think about it; these things were destined to become contraband one way or another. Would we rather it happen with no collateral damage as it has, or do we want to roll the dice on what sort of broader anti-gun legislation will come through a Democrat house and squishy republican senate next month? With bump stocks already off the table, there is far less momentum & public support for further gun control.
 
I would honestly prefer that the ban doesn't get overturned/nullified. The precedent of the way it was gone about I don't like, but the ban itself is really a good thing for RKBA in the long game. Think about it; these things were destined to become contraband one way or another. Would we rather it happen with no collateral damage as it has, or do we want to roll the dice on what sort of broader anti-gun legislation will come through a Democrat house and squishy republican senate next month? With bump stocks already off the table, there is far less momentum & public support for further gun control.
You have this all wrong. The precedent being set is that the plain and clear meaning of words can be redefined at the whim of politicians and bureaucrats. If they can redefine what “single function of the trigger” means then they can also redefine what “ammunition feeding device” or “centerfire metallic cartridge” means as well.

We will be playing poker with a deck of erasable cards.
 
Status
Not open for further replies.
Back
Top