PRESIDENT TRUMP OVERSTEPPED HIS AUTHORITY IN BANNING BUMP STOCKS.
THE PRETEXT FOR TRUMP’S CALL FOR A BAN ON BUMP STOCK DEVICES.
Following the devastating, unconscionable attack by the maniac, Stephen Paddock, on innocent concertgoers, attending a concert in Las Vegas, Nevada, on the evening of October 1, 2017, the gun grabbers wasted little time in turning their attention on what they depicted as the salient culprit of the carnage: a little device called a “bump stock.” It is a device that investigators found attached to semiautomatic rifles Paddock used in his murderous assault.
Antigun groups and antigun politicians immediately called for a ban on the device. But, oddly and sadly, it is President Donald Trump, the seemingly indefatigable champion of the Second Amendment—not the Democratic Party leadership—who gave the gun grabbers what they want: a ban on “bump stocks.”
DONALD TRUMP MAY ACT RASHLY ON SOME MATTERS AND AVOID REPERCUSSIONS; NOT SO, WHEN HE BLATANTLY ATTACKS THE SECOND AMENDMENT.
The Arbalest Quarrel has been an early and avid supporter of Trump’s bid for the U.S. Presidency—first during his campaign for the Republican Party nomination, and then during the turbulent first two years in Office, as he was buffeted and roiled on all sides by various factions that sought and still seek to destroy his Presidency. It is alarming, though, when Trump seems to disregard those who support him. Trump had made several promises to the American electorate. Among the most important he promised to build “a wall,” an effective physical structure to keep the multitude of illegal aliens from cavalierly crossing our Nation’s borders, and audaciously claiming the same rights, liberties, and protections that accrue only to American citizens. Trump realizes now, a bit late in the day, that his thoughts of a second term in Office, in 2020, will be undone if he fails to deliver on that oft repeated promise. Just as importantly, Trump made abundantly clear, during his campaign, that he is a staunch supporter of the Second Amendment. But, what has Trump done to merit his supporters’ continued devotion? So far, two years into his four-year term in Office, we see nothing concrete.
Trump normally “trumpets” his actions, consistent with the importance of, and his belief in, Governmental transparency. That’s a good thing and to be applauded. It is something his predecessor in Office, Barack Obama, said he would do but rarely if ever did, preferring to cloak his own actions in secrecy. The insidious, reprehensible “Operation Fast and Furious” is a case in point; an oblique attempt to undermine the fundamental right codified in the Second Amendment. But, as for the architects of the policy, neither the Attorney General—at the time, Eric Halder—nor President Obama, was ever called to account for it. Yet, it is Donald Trump now, not Barack Obama, who has deviously and insidiously undermined the Second Amendment, and he is doing so through an aggressive, unconscionable, unconstitutional, unilateral executive act.
Remember what Trump said about national concealed handgun carry?
“The right of self-defense doesn’t stop at the end of your driveway. That’s why I have a concealed carry permit and why tens of millions of Americans do too. That permit should be valid in all 50 states. A driver’s license works in every state, so it’s common sense that a concealed carry permit should work in every state. If we can do that for driving – which is a privilege, not a right – then surely we can do that for concealed carry, which is a right, not a privilege.” ~ Donald J. Trump on the Right to Keep and Bear Arms
Were these just vacuous words, delivered merely to appease supporters at a singular moment in time, and then to be dispensed with once the U.S. Presidency had been secured and when political expediency seemingly required? Apparently, so. After the Parkland, Florida tragedy, the Washington Examiner reported that,
“President Trump told Republicans on Wednesday they should not include a measure that allows people with concealed carry permits in one state to carry across state lines in a comprehensive gun bill.
‘I think that maybe that bill will one day pass, but it should pass separate,’ Trump said during a bipartisan meeting at the White House. “If you’re going to put concealed carry between states into this bill, we’re talking about a whole new ball game. I’m with you, but let it be a separate bill.”
The President weaseled, giving only lukewarm support for national concealed handgun carry reciprocity legislation. Obviously this wasn’t a high priority for him. Is it, then, any surprise that, apart from a push by the Republican controlled House in 2017—evidently in spite of the President, not because of him—Congressional action ultimately failed to deliver? Congress got the message. Since preservation and strengthening of the Second Amendment right of the people to keep and bear arms is apparently a low priority for the U.S. President, it was a low priority for Congress—certainly for the Republican-controlled Senate.
A full Roll-Call vote on the Senate Floor was necessary even if the Senate failed to secure 60 votes necessary for passage of national concealed handgun carry reciprocity legislation since the American public would know who, among both Democrats and Republicans, voted in favor of the measure and those who did not; those Senators, then, who support our sacred Second Amendment right and those who, clearly, do not.
But, Mitch McConnell never called for a Floor vote, though he could have done so. We will remember McConnell’s disservice to the American people for failing to hold a full Senate Floor vote. And we will remember Trump for failing to make national concealed handgun carry reciprocity legislation a priority goal. Republicans controlled the Congress—both Houses—along with the U.S. Presidency, from 2016 through 2018. Republicans have now lost the U.S. House of Representatives. The Second Amendment right of the people to keep and bear arms took a backseat to both health care and taxes. It should not have, but it did.
We face a Democratic Party majority-controlled House whose leadership has a decidedly and decisively different, and ominous agenda in store for the American people. It is a safe bet that Gun control and the general weakening of the Second Amendment will not be secondary issues for the Democratic Party leadership once they assume control of the House on January 3, 2019—unlike strengthening the Second Amendment was, obviously and unfortunately, a secondary issue for Republicans.*
The Arbalest Quarrel has written several articles on this critical matter, posting those articles on our website; and on Ammoland Shooting Sports News; and on “The Truth About Guns.” Ammoland posted our latest one, titled, “National Concealed Handgun Carry Reciprocity – Last Chance to Act,” on November 27, 2018. In that article, we urged Senate Majority Leader, Mitch McConnell, to call for a Senate Floor vote on the House he could have done so. There was time before the year-end adjournment. If the Senate did clear the 60 vote threshold, the bill could have been sent immediately to President Trump for his signature. And Trump would have had to sign it even if he were reluctant to do so. For, it would have been, as he insisted, in his remarks to Republicans, that it must be “a separate bill,” subsumed in no other Congressional bill, as it was a separate bill. But, now, we will never know. The bill that passed the House, the “Concealed Carry Reciprocity Act of 2017,” 115 H.R. 38, will automatically die—as unfinished business of the old Congress—once the new Congress commences work on January 3, 2019.
TRUMP IGNORES HIS PLEDGE TO THOSE OF US WHO SUPPORTED HIM; CAPITULATING COMPLETELY TO THE ANTIGUN CROWD, ONCE HE CALLED FOR A BAN ON BUMP STOCKS.
As if the Republican controlled Senate’s failure to enact national concealed handgun carry reciprocity legislation and President Trump’s failure to push forward a pro-Second Amendment agenda during his first two years in Office weren’t bad enough—a serious failure of omission on the part of both the U.S. Senate and the President—Trump’s ban on “bump stocks”—an act of commission—is even worse. By foolishly, impetuously, acting to ban “bump stocks,” the President demonstrates a dangerous naïvety and ineptitude, along with a disturbingly blithe lack of concern for the well-being of the fundamental, immutable, unalienable, inviolate right of the American people to keep and bear arms. Trump is obviously oblivious to the deleterious impact his unilateral action shall have—not simply may have—on the Second Amendment itself.
President Trump’s failure to cajole Congress to action, to strengthen our most cherished and important right, is unacceptable. That failure deserves our condemnation. But undermining our most cherished right is alarming and unforgivable. That deserves our lasting contempt. With the radical Left urging Democratic Party House members to impeach Trump, upon issuance of the Special Counsel’s, Robert Mueller’s, report that is due out at any time now, the President can ill afford to antagonize his own base; but Trump has done just that with his flagrant attack on the Second Amendment.
Trump should have left the matter of bump stocks to Congress. Congress, acting through its Article 1 legislative power, can, conceivably, lawfully, take such action to ban them, if it sought to do so, assuming—a big “if”—that the law, depending on the matter of its statutory construction, does not run afoul of the Second Amendment to the U.S. Constitution. But it is not for the President to take that action upon himself under any set of circumstances. We have a system of checks and balances in our Country, and for good reason.
Congress makes the law. That power is within the province of Congress, not the President. The President’s duty is to faithfully execute the laws Congress enacts. Under our Constitution, the President has no authority to make binding law, in lieu of Congress. Unlike Great Britain and Australia, the Chief Executive has no authority to self-execute laws. The President does not serve as both Chief Executive and “Legislator in Chief.”
We have seen how Obama has shown a marked, carefree proclivity to ignore the federal Government’s system of “checks and balances” that the founders of our Republic wisely conceived of and assiduously placed into our Constitution. As Article 1, Section 8, Clause 4, makes crystal clear, it is the province of Congress to “establish an uniform Rule of Naturalization.” Obama, as President, and, no less a lawyer and academician, knows this. Yet, that did not prevent him from unlawfully promulgating and implementing his infamous, illegal “Deferred Action for Childhood Arrivals” (DACA), policy, along with the concomitant mess it left for his successor, President Trump.
What was Obama’s motive for DACA? As he says, as reported to the Leftist media echo chamber, CNN: “. . . for years while I was President, I asked Congress to send me such a bill. That bill never came. . . . “Let’s be clear: the action taken today isn’t required legally. It’s a political decision, and a moral question.” Obama proselytizes to Americans, talking down to us as if we were children, suggesting that it is he, Obama,“the Great Father,” who shall teach us all what we ostensibly need to know about law, politics, and morality too, audaciously exclaiming that, as Congress didn’t give Obama what he wants—he—Barack Obama, will make law himself!
Obama’s remarks are a textbook example of propaganda, disseminated to the public by an insincere Press. It is bombastic, simplistic, perfunctory rhetoric; absolute drivel. Obama certainly knows it; but so should the Press. This smug, duplicitous attitude on the part of both Obama and the Press serves to make Obama’s remarks and the mainstream media’s reporting of them all the more diabolical and reprehensible.
One salient, critical duty of the Chief Executive of the Nation, set down in Article 2, Section 3 of the Constitution is to “take Care that the Laws be faithfully executed.” The laws the President is duty-bound to faithfully execute are the laws Congress enacts. The President has no power to issue personal edicts, suggesting they have the force of Congressional law when in fact they don’t; and cannot ever have. As Article 1, Section 1 of the U.S. Constitution makes abundantly and absolutely clear: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” There is nothing in Article 1 or in any other Article of the U.S. Constitution reciting that legislative powers, of some sort or another, also vest in the President. Such powers do not invest in the President; only in Congress.
THE U.S. CONSTITUTION CONSISTS OF FUNDAMENTAL PRECEPTS; NOT SIMPLE PLATITUDES.
Trump, as with Obama before him, has begun to demonstrate a disturbing propensity to ignore precepts of the U.S. Constitution, when he wishes to do so, unmoved by the dictates of either the Constitution or his conscience. His unilateral action banning bump stocks was a calculated move. It is obvious why he took this action. He evidently felt the general public supported it—more of those in favor of it than not. He caved to public pressure to deliver something to the public, because of the worst mass shooting ever to occur in our Nation and an unthinkable tragedy that happened to occur on his watch. That may appear as reason enough to act, by some, but Trump should not have fallen prey to the frenzy of the moment, and with such apparent alacrity, abandon, and smug self-assurance.
The continued existence of the natural, fundamental rights set forth in the Bill of Rights are not properly to be left to public whim, anyway, and never have been. Public opinion is easily manipulated and ever changeable. The founders of our Republic didn’t intend for the fundamental rights and liberties of the American people to be weakened by mere heat and rancor of a given moment in time. That ought to be clear enough to most Americans if they stop to consider this. It should be clear enough to Congress. And it should be clear enough to the President, too; but apparently it wasn’t. And, having taken the action to ban bump stocks devices, President Trump did nothing to make this Nation safer. Having bowed to political pressure–something he is, often and admirably enough, not ordinarily inclined to do, but did so in this instance–he reneged on a salient campaign promise he made to millions of Americans, namely that he, like they, fervently and reverently hold the Nation’s Second Amendment in the highest regard, and that he will do his best to preserve and strengthen it. Yet, a ban on bump stock devices does no such thing. Rather, it makes a mockery of Trump’s promise to the American people. Worse, taking the action he did to usurp Congressional authority and prerogative to make law, Trump did much more than simply undermine a campaign pledge; he undermined the very Constitution he swore an oath to preserve and to protect. Article 2, Section 1, Clause 8 of the Constitution makes plain that,
“Before he enter on the execution of his office, he shall take the following oath or affirmation:—‘I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.’”
Trump does not faithfully execute the office of President of the United States by making up his own law as he goes. He doesn’t preserve, protect, and defend the Constitution of the United States when he takes upon himself–as did his predecessor Barack Obama–the role the framers of the Constitution reserved alone to Congress, namely the authority to make law. And, Trump certainly doesn’t preserve, protect and defend the Constitution of the United States, when he undermines the fundamental, immutable, unalienable rights and liberties of the American people as codified in the Bill of Rights of the United States Constitution.
Whether operating through grandiose self-delusion or blatant deceit, a Chief Executive, who fails to adhere to the limitations on his authority, as our Constitution dictates and mandates, significantly threatens the continued well-being of a free Republic. Under no set of circumstances can suspension or abrogation of our Constitution ever be justified.
TRUMP’S UNILATERAL ACTION, BANNING BUMP STOCKS, IS UNLAWFUL.
Although Trump could have and should have left the matter of “bump stocks” to Congress, Trump’s unilateral action, banning civilian ownership and possession of bump stocks is unlawful. That isn’t an open question. The answer to that question, under Constitutional law, is clear and categorical. Trump cannot lawfully do so. But, he took that action anyway. The danger we now face, given Trump’s rash action, goes well beyond the relative merit or utility of bump stocks, themselves.
Trump’s action calls into immediate question the import of Congressional legislation and the weight to be given to U.S. Supreme Court pronouncements on matters of law. If Trump’s action withstands legal challenge and scrutiny—and David Codrea’s article posted in Ammoland Shooting Sports News points to several formal complaints that have been recently been filed contesting the constitutionality of the ban—the ‘rule of law’ becomes mere shallow and hollow rhetoric; legislation becomes mere ad hoc artifice, subject to the vicissitudes of fate; and the Bill of Rights loses its inviolability and immutability.
THE DOJ-ATF RULE BANNING “BUMP STOCKS” IS PATENTLY UNLAWFUL.
Two major websites, Ammoland Shooting Sports News and The Truth About Guns, have posted several fine articles on the issue of bump stocks. The Arbalest Quarrel provides its own take on this subject, including an analysis of the law regarding administrative decision-making.
We reach a disturbing but irrefutable conclusion: if the Courts do not strike down Trump’s action, we will continue to see the inexorable whittling away of the right of the people to keep and bear arms, leading inevitably to the demise of civilian ownership and possession of all semiautomatic firearms, not simply to the demise of firearms pejoratively called “assault weapons.”
We begin our analysis with the language of Trump’s Memorandum, issued on February 20, 2018. The Memorandum is titled “Application of the Definition of Machine gun to ‘Bump Fire’ Stocks and Other Similar Devices.” 3 CFR Memorandum of 2/20/18. This Executive Office Memorandum placed the Justice Department on notice of the President’s intent to promulgate a rule criminalizing possession of bump stock devices–all of them, regardless of the nature of operation of any one manufacturer’s version of the device–and further ordered the Department of Justice (DOJ) to promulgate a rule, banning those devices. The Memorandum directed to the Attorney General, and signed by Donald Trump, reads:
“After the deadly mass murder in Las Vegas, Nevada, on October 1, 2017, I asked my Administration to fully review how the Bureau of Alcohol, Tobacco, Firearms and Explosives regulates bump fire stocks and similar devices.
Although the Obama Administration repeatedly concluded that particular bump stock type devices were lawful to purchase and possess, I sought further clarification of the law restricting fully automatic machine guns.
Accordingly, following established legal protocols, the Department of Justice started the process of promulgating a Federal regulation interpreting the definition of ‘machine gun’ under Federal law to clarify whether certain bump stock type devices should be illegal. The Advanced Notice of Proposed Rulemaking was published in the Federal Register on December 26, 2017. Public comment concluded on January 25, 2018, with the Department of Justice receiving over 100,000 comments.
Today, I am directing the Department of Justice to dedicate all available resources to complete the review of the comments received, and, as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machine guns.
Although I desire swift and decisive action, I remain committed to the rule of law and to the procedures the law prescribes. Doing this the right way will ensure that the resulting regulation is workable and effective and leaves no loopholes for criminals to exploit. I would ask that you keep me regularly apprised of your progress.
You are authorized and directed to publish this memorandum in the Federal Register.”
[signed] Donald Trump
There are four points to ponder here. First, through this Memorandum, Trump attempts to make law, not simply execute laws Congress enacted because Congress hasn’t enacted a law banning bump stocks. So there is no law for the President to faithfully execute under Article 2, Clause 3 of the U.S. Constitution. His remark—“I remain committed to the rule of law”—is what we hear all the time from Democrats. It is a remark he expects the public to accept on blind faith. Politicians make use of it often enough. But, the remark invariably comes across as hollow, flaccid, and pathetic; a useless appendage, demonstrating a lack of conviction at its very utterance, as the action taken belies the seeming veracity of the sentiment underlying it.
The fact remains: absent express Congressional authorization the Executive Branch of Government cannot lawfully promulgate rules to effectuate the will of Congress if there is no will of Congress to effectuate. And, there is none here.Trump has blatantly exceeded his authority under the Constitution.
Second, the Memorandum—a directive to the DOJ—is logically inconsistent. Trump says, at the outset, he simply seeks “further clarification of the law restricting fully automatic machine guns,” but then makes clear that it isn’t mere clarification he seeks at all. He tells the DOJ “to propose for notice and comment a rule banning all devices that turn legal weapons into machine guns.” Trump is kidding no one. He is illegally attempting to promulgate law.
Third, the Memorandum calls for a drastic measure. There is nothing in the Memorandum allowing for the grandfathering of bump stocks in the hands of American citizens. Consider: even the infamous federal assault weapons ban act of 1994 (that expired in 2004) made abundantly clear it did not apply to possession or transfer of any semiautomatic assault weapon a citizen happened to lawfully possess before enactment of the Congressional legislation.
The new ATF Rule, though, is far more ambitious than even Congressional legislation that banned new purchases of “assault weapons.” For, under the ATF Rule, Americans who fail to surrender bump stocks or who otherwise fail to render them inoperable are subject to criminal prosecution. There is no exception, and no grandfathering of devices that, before implementation of the Rule, had been lawfully purchased.
Fourth, Trump takes the position—as is clear from the language of the Memorandum—that he can get around the Statutory legal hurdle by claiming to operate within it; but he does so by tortuously toying with the definition of ‘machine gun’ to include ‘bump stocks.’ Trump does not succeed and he is wrong in his endeavor in attempting to do so. He is unlawfully expanding upon and redefining the clear, concise and precise definition of ‘machine gun’ as codified by Congress in Federal Statute. Further, Trump’s attempt to get around the hurdle of a clear concept of ‘machine gun’ is unnerving. It would have been better—although still legally indefensible–had he simply sought to ban “bump stocks” outright, without the semantic convolutions, gyrations, and machinations.
Trump attempts to convince the public that “bump stock devices” do convert semiautomatic firearms into machine guns. Trump simply pretends to be on a sound legal, logical, and grammatical footing. He isn’t. The reason Trump contrives to win over the public is plain. Congress has specifically defined the expression, ‘machine gun,’ in Statute; and it has defined the expression explicitly and unambiguously.
In 26 USCS § 5845, titled “definitions,” “the term ‘machine gun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.”
If ever the language of a Congressional Statute were straightforward and readily understood by a firearm’s expert or by a lay person, 26 USCS § 5845 is such a Statute. If an agency of the Executive Branch of the Federal Government can undermine Federal law so blatantly, as Trump attempts to do so here, then no Federal Statute is safe from abrogation by Executive edict by those in Government who would dare trifle with our Nation’s Constitution and laws.
Unless, the concept of ‘bump stock’ falls within the meaning of ‘machine gun,’—and it doesn’t—the Justice Department cannot lawfully promulgate a rule that extends the legal definition beyond the parameters mandated by Congressional Statute. Yet, it has dared to do just that, even as it insists that it has not. Trump has audaciously ordered DOJ to promulgate an illegal rule, and the DOJ, through the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), has obliged.
THE NEW ATF RULE: A CATEGORICAL BAN ON BUMP STOCK DEVICES
In the Federal Register, 83 FR 13442, the DOJ, through the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), has proposed a rule change to the Code of Federal Regulations (CFR), specifically, 27 CFR Parts 447, 478, and 479.
The proposed Rule, reads: “The Department of Justice (Department) proposes to amend the Bureau of Alcohol, Tobacco, Firearms, and Explosives regulations to clarify that ‘bump fire’ stocks, slide-fire devices, and devices with certain similar characteristics (bump-stock-type devices) are “machine guns” as defined by the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA), because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger. Specifically, these devices convert an otherwise semiautomatic firearm into a machine gun by functioning as a self-acting or self-regulating mechanism that harnesses the recoil energy of the semiautomatic firearm in a manner that allows the trigger to reset and continue firing without additional physical manipulation of the trigger by the shooter. Hence, a semiautomatic firearm to which a bump-stock-type device is attached is able to produce automatic fire with a single pull of the trigger. With limited exceptions, primarily as to government agencies, the GCA makes it unlawful for any person to transfer or possess a machine gun unless it was lawfully possessed prior to the effective date of the statute. The bump-stock-type devices covered by this proposed rule were not in existence prior to the GCA’s effective date, and therefore would fall within the prohibition on machine guns if this Notice of Proposed Rule making (NPRM) is implemented. Consequently, current possessors of these devices would be required to surrender them, destroy them, or otherwise render them permanently inoperable upon the effective date of the final rule.”
The ATF has now finalized the proposed rule, amending the first sentence to read:
“The Department of Justice is amending the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). . . .”
As a final Agency Rule, it is ripe for judicial review, if challenged; and it is rightfully being challenged.
THE ATF’S REASONING ON BUMP STOCK DEVICES IS FLAWED.
The critical problem with the ATF Rule is this: bump stocks are not machine guns; nor are they accessories for machine guns; and saying they are machine guns, as the ATF categorically and brazenly does say, doesn’t make them so. The rule seemingly complies with federal Statute by iterating the critical point that “. . . such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.” But, the assertion is false, and the Rule must be struck down on that ground alone. The Rule is also a noxious affront to the natural, fundamental, and unalienable right etched in stone in the Second Amendment. The ATF Rule cannot be allowed to stand without doing a disservice to the purport of our Nation’s Bill of Rights.
Without amnesty for those who lawfully possessed bump stock devices, prior to implementation of the new DOJ-ATF Rule, 83 FR 13442, a wholesale ban on bump stocks place those of us who possess the devices in clear legal jeopardy. Keep in mind the last line of the Rule: Consequently, current possessors of these devices would be required to surrender them, destroy them, or otherwise render them permanently inoperable upon the effective date of the final rule.” This retrospective application to existing lawful owners of bump stock devices is outrageous, and, apart from other serious Constitutional issues attendant to 83 FR 13442, the Rule may also amount to a violation of Article 1, Section 9, Clause 3 of the U.S. Constitution, which says clearly and succinctly: “No Bill of Attainder or ex post facto Law shall be passed.” The Arbalest Quarrel will look into a possible violation of Article 1, Section 9, Clause 3 in a future article.
THE ATF’S ASSERTION THAT BUMP STOCKS CONVERT SEMIAUTOMATIC RIFLES INTO MACHINE GUNS IS BOTH LOGICALLY AND LEGALLY FAULTY.
Let’s take a moment to reassess.
What is a ‘bump stock,’ really? Who invented it? How long has it been on the market? Why the uproar over it? Is it really the awful object that antigun zealots and the President, too, claim it is? And, most importantly, does a ban on bump stocks place those of us who possess semiautomatic weapons–millions of law-abiding American citizens–in legal jeopardy?
A LITTLE HISTORY ON BUMP STOCKS—
Who Invented the “Bump Stock?”
Four days, after the Las Vegas concert tragedy, The New York Times looked into this mechanical device called a “bump stock,” reporting, with typical tabloid flourish:
“Gun enthusiasts looking for an extra thrill have long found makeshift ways to replicate the exhilaration of using an automatic weapon — the thrill of the noise and the jolt of rapid-fire rounds — while bypassing the legal hassle and expense of getting one.
They contrived devices using pieces of wood, belt loops and sometimes even rubber bands, to mimic the speed of a fully automatic weapon — even if it meant sacrificing accuracy.
Then came Jeremiah Cottle with an answer. A Texas farm boy turned Air Force veteran, he figured he could do better. He sank $120,000 of his savings into the development of a high-end bump stock, a device that harnessed a rifle’s recoil to fire hundreds of rounds a minute.
He began selling bump stocks in 2010 with the help of his wife and grandparents in Moran, Tex., his small hometown of fewer than 300 residents. His company, Slide Fire Solutions, won approval from federal firearms regulators, and the business moved from a portable building that had once been a dog kennel into a much larger space on the Cottle family farm. Sales exceeded $10 million and 35,000 units in the first year.”
HOW DOES A BUMP STOCK OPERATE?
Antigun groups, along with the Press provide their impressions of “bump stocks”—offering descriptions from the deceptive and simplistic to the florid and patently absurd.
Following up on the October 2017 story, the NY Times, on February 18, 2018 said this says about the device’s operation:
“A ‘bump stock’ replaces a rifle’s standard stock, which is the part held against the shoulder. It frees the weapon to slide back and forth rapidly, harnessing the energy from the kickback shooters feel when the weapon fires. The stock “bumps” back and forth between the shooter’s shoulder and trigger finger, causing the rifle to rapidly fire again and again. The shooter holds his or her trigger finger in place, while maintaining forward pressure on the barrel and backward pressure on the pistol grip while firing.”
The NY Times’ animation aptly illustrates that one shot, and one shot only, is fired through a single pull of the trigger. A successive pull of the trigger is required each time in order to initiate an additional shot.
The Progressive weblog “Trace,” says, “A bump stock is a foot-long piece of plastic capable of transforming a semiautomatic rifle into a weapon functionally indistinguishable from a machine gun. That means a gun fitted with a bump stock can fire up to 800 rounds per minute.”
This is more than simple hyperbole. The problem with the remark is that the expression, ‘machine gun’ is defined in federal statute by manner of operation, and not, as the weblog Trace, argues, by rate of fire. Antigun proponents do not, however, appear to concern themselves over, or allow themselves to be constrained by, niceties of law. They are only interested in political results.
Not to be outdone the NY Times or by the weblog, Trace, Gabby Gifford’s antigun group chimed,
“In the absence of immediate action by Congress, I urge ATF to finalize its proposed rule clarifying that bump fire stocks, along with other “conversion devices” that enable semiautomatic weapons to mimic automatic fire, qualify as “machine guns” under the National Firearms Act. And then Congress must act as well—to ensure that manufacturers cannot continue to endanger public safety by designing devices that imitate machine guns and subvert the law. The continued presence of these dangerous devices puts all of our communities at risk, and both Congress and ATF must take action quickly to address this threat.”
Whether modification of a semiautomatic rifle, incorporating a bump stock, serves “to mimic automatic fire” is, from the legal standpoint, absolutely irrelevant because this kind of modification does not convert a semiautomatic rifle into a machine gun. One pull of the trigger yields one shot and one shot only, not successive shots.
These remarks by Gifford’s organization are purposely incendiary and patently ridiculous. Indeed, even the progressive website, “Vox,” citing an AP News report—albeit claiming that bump stocks offer a “way around the law [pertaining to machine guns]”—felt compelled to admit, if only reluctantly, that bump stock modifications to semiautomatic rifles do not convert those rifles into machine guns.
“The device basically replaces the gun’s shoulder rest, with a “support step” that covers the trigger opening. By holding the pistol grip with one hand and pushing forward on the barrel with the other, the shooter’s finger comes in contact with the trigger. The recoil causes the gun to buck back and forth, “bumping” the trigger.
Technically, that means the finger is pulling the trigger for each round fired, keeping the weapon a legal semi-automatic.”
One pull of the trigger yields one shot and one shot only, not successive shots. So, whether modification of a semiautomatic rifle, incorporating a bump stock, serves to “mimic” automatic fire, as Gifford’s antigun group, and others like it, claim, is, from the legal standpoint, absolutely irrelevant because this kind of modification does not convert a semiautomatic rifle into a machine gun. And, there’s the rub!
EXPERT OPINION EXISTS TO SUPPORT THE CONCLUSION THAT BUMP STOCKS MODIFICATIONS TO SEMIAUTOMATIC RIFLES DO NOT CONVERT THOSE SEMIAUTOMATIC RIFLES INTO MACHINE GUNS, SUBJECT TO FEDERAL REGULATION UNDER THE GUN CONTROL ACT OF 1968 OR THE NATIONAL FIREARMS ACT.
One individual or Company (name and address redacted) contacted the ATF, requesting a formal opinion on whether its device, an “AR-15 Type ‘Bump Fire Stock,’” fell within the federal legal definition of a ‘machine gun’, that “would be regulated by the provisions of the Gun Control Act of 1968 (GCA) or the National Firearms Act (NFA).”
A firearms’ expert, Michael R. Curtis, Chief, Firearms Technology Industry Services Branch, reviewed the device. He responded, on April 17, 2017, to the query (about six months before Paddock went on his rampage in Las Vegas). In principal part, Michael Curtis said this,
“Your bump fire grip device consists of the following:
One AR-style pistol grip that it attached to and adjustable butt stock by a flat metal bar bent to contour to the buttstock. The pistol grip has two plastic pieces attached by small screws, one is the extension for resting your finger on while firing and the other is a shield to prevent the pistol grip from pinching the grip fingers of the firing hand.
Your stock is designed to allow an AR-type semiautomatic rifle mounted to it to reciprocate back and forth in a linear motion. The absence of an accelerator spring or similar component in the submitted device prevents it from operating automatically. When operated, forward pressure must be applied with the support hand to the forward hand guard fore-end of the AR-type rifle mounted to your stock, bringing the receiver assembly forward to a point where the trigger can be pulled by the firing hand. If sufficient forward pressure is not applied to the hand guard with the support hand, the rifle can be fired in a conventional, semiautomatic manner since the reciprocation of the receiver assembly is eliminated.
The FTISB examination of the submitted device indicates that if as a shot is fired and a suU/dent[?] amount of pressure is applied to the hand guard/gripping surface with the shooter’s support hand—the AR-type rifle assembly will come forward until the trigger re-contacts the Shooter’s stationary firing-hand trigger finger: Re-contacting allows the firing of a subsequent shot. In this manner, the shooter pulls the receiver assembly forward to fire each shot, each succeeding shot firing with a single trigger function. . . .
Moreover; we should point out that the addition of an accelerator spring or any other non-manual source of energy which allows this device to operate automatically will result in the manufacture of a ‘machine gun’ as defined in the NFA, 5845(b).”
The juxtaposition of an expert’s opinion on bump stock devices and the wording of the ATF Rule stipulating an outright ban on “bump stock” devices, aptly illustrates the critical differences between well-reasoned opinion on the one hand written by a firearms’ expert, Michael Curtis, and, on the other hand, simplistic verbiage, reflected in the new ATF Rule, crafted, no doubt, by people who are not firearms’ experts. Further, the opinion of Michael Curtis is facially neutral; the ATF Rule, politically motivated as it obviously is, is only seemingly facially neutral.
Michael Curtis considers the technical attributes of and operation of bump stocks, calmly and rationally. His findings demonstrate his technical knowledge, and he draws a conclusion as to the legality of the particular device submitted to him, on the basis of the law, as enacted. In the law, as enacted, Congress defines the expression, ‘machine gun.’ That definition happens to accord with industry use of the expression. There is no embellishment. But that is not what we see in the language of the ATF Rule, as promulgated. The drafters of the Rule were only interested in giving the President what he asked for; what he wanted; what he demanded from them; and they did so.
Those who drafted the ATF Rule clearly did not bother to consider the technical intricacies of “bump stock” operation. The Rule is nothing more than a simplistic, ill-informed, technically deficient, politically motivated and mandated edict, posing as a well-reasoned administrative pronouncement, ostensibly having the force of agency law. It is not. Those who crafted the ATF Rule on bump stock devices made no attempt to distinguish among any of them. Their mandate was to create a Rule to ban them—all of them; anything that might conceivably resemble them. The drafters of this agency Rule, insidiously contrived to craft a rule that, by outward appearance—to those who nothing about firearms’ operation—may seem impressive. But, as is often the case, appearances are deceptive, and that is the case here. Those who crafted this Rule had their “marching orders.” They conspired to give President Trump what he wanted; what he asked for; what he demanded of them. They connived, and contrived, and conspired, when crafting their Rule, to place bump stock devices within the orbit of a firearm’s accessory that converts a semiautomatic rifle into a machine gun. If the deception succeeds politically, that is all that matters to the President, and to them; but, as the Rule is logically and legally flawed, it cannot withstand Constitutional scrutiny by the Judiciary, and must be struck down.
Were this Rule to escape Judicial inquiry unscathed, it will invite misuse of Congressional Statute at every turn—merely to achieve a political end, desired by some. Those who crafted this ludicrous Rule meant to deceive the public. Hopefully, the Courts will not allow themselves to be similarly deceived.
APART FROM TRUMP’S RASH, INCORRIGIBLE ACTION, WHAT, IF ANYTHING, HAS CONGRESS DONE TO CURB POSSESSION OF “BUMP STOCKS?”
Curiously, Congress did attempt action to ban “bump stocks,” albeit unsuccessfully. On October 31, 2017, about one month after Paddock’s murderous assault on innocent Americans, Brian Fitzpatrick (R-PA), sponsored a bill, called, “Closing the Bump-Stock Loophole Act,” 115 H.R. 4168.
The bill had co-sponsors among both Republicans and Democrats. The stated purpose of the bill was “. . . to amend the Internal Revenue Code of 1986 to treat in the same manner as a machine gun any bump fire stock, or any other devices designed to accelerate substantially the rate of fire of a semiautomatic weapon.”
The bill, if enacted into law would amend Section 5845(a) of the Internal Revenue Code of the United States Code (USCS) of 1986:
IN GENERAL. Section 5845(a) of the Internal Revenue Code of 1986 is amended by striking “and (8)” and inserting the following: “(8) a reciprocating stock, or any other device which is designed to accelerate substantially the rate of fire of a semiautomatic weapon; and (9)”.
(b) Semiautomatic Weapon.—and Section 5845 [26 USCS § 5845] of such Code is amended by adding at the end the following new subsection:
“(n) Semiautomatic Weapon.— The term ‘semiautomatic weapon’ means any repeating weapon that—
“(1); utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and
“(2);requires a separate function of the trigger to fire each cartridge.”
The bill went nowhere. But, interestingly, the bill, if enacted, would not have redefined or expanded upon the definition of ‘machine gun,’ in 26 USCS § 5845—something the ATF Rule rashly does—but instead would include a definition for ‘semiautomatic weapon,’ which 26 USCS § 5845, at present, doesn’t have. The bill would then ban devices “. . . designed to accelerate substantially the rate of fire of a semiautomatic weapon.” It would treat bump stocks, “in the same manner as a machine gun,” true, as the language of the bill so states; but that isn’t the same thing as saying that “bump stocks” are “machine guns.” That is an important difference, as the definition of ‘machine gun’ is codified in federal statute. There was nothing in the proposed bill to suggest a Congressional intention to amend or to expand upon the statutory [26 USCS § 5845] definition of ‘machine gun.’
Congress itself obviously had a marked reluctance “to play” with its own definitions, and avoided doing so—a reservation that Trump obviously doesn’t have, when he wholeheartedly took upon himself, the role of both Chief Executive and “Legislator in Chief.”
Still, the Congressional bill was a bad idea at the get-go. Had it passed, antigun zealots could have, and likely would have, used the new law to argue that any new development in semiautomatic weapon technology, as a matter of efficiency, accelerates substantially the rate of fire of the semiautomatic weapon and, so, must be banned. After all, Antigun proponents see little if any difference between semiautomatic firearm on the one hand and machine guns, submachine guns, and selective fire weapons on the other, anyway. To these zealots all semiautomatic firearms are “weapons of war,” having no practical civilian use, asserting they—ultimately all of them—should be banned outright.
Antigun proponents have worked for decades to make their goal a reality; and they continue to work toward this end—all with the avid monetary and organizational assistance of wealthy globalists who seek to subordinate our Constitution, our system of laws, and our jurisprudence to a “one-size fits all” set of international norms. If they succeed in that endeavor, the independence and sovereignty of individual nation states will come to a screeching, halt and catastrophic end. All Western nations will all be corralled into a single, centralized and uniform political, social, cultural, economic, and financial system of governance. The EU is the test bed and the basic framework for this system. Even as the citizenry of the individual nations within the EU, realizing that their nations are moving inexorably to dissolution and are beginning to resist that effort, it may be too late for them. But, it isn’t, as yet, too late for us—so long as our Bill of Rights, and, especially, are Second Amendment remains intact. The DOJ-ATF “Bump Stock” Rule is not a neutral rule. If allowed to stand, unchallenged, it can and will have a devastating impact on the continued well-being of the right of the people to keep and bear arms.
THE ATF “BUMP STOCK” RULE THAT WE NOW HAVE IS WORSE THAN THE CONGRESSIONAL BILL WOULD EVER HAVE BEEN.
As bad as Representative Fitzpatrick’s bill [“Closing the Bump-Stock Loophole Act,” 115 H.R. 4168], was, if enacted, the new ATF Rule, as now finalized, is far worse. Indeed, even Congress was reluctant to subsume the concept of ‘semiautomatic weapon’ into the concept of ‘machine gun.’ President Trump has no such reservations. Trump’s Memo to the DOJ suggests that either he has given little thought to the matter or couldn’t care less about the legal consequences of his actions had he thought about the matter at all. The ATF filled with antigun fanatics, delivered for Trump, with unsurprising, characteristic exuberance.
The ATF has laid the groundwork for subsuming semiautomatic weaponry into the category of ‘machine guns,’ even though a clear bright line between machine guns and semiautomatic firearms exists in Congressional Statute. It is a line that Congress has carefully delineated, and it is one which Congress is loath to tinker with. Yet this sharp, distinction between semiautomatic firearms on the one hand and machine guns on the other is one that Trump has cavalierly, and literally, at the stroke of a pen, erased.
This ATF Rule, if allowed to stand, would severely weaken the Second Amendment. Hopefully, the Gun owners of America, that is challenging the constitutionality of the ATF Rule will prevail. GOA must prevail for the good of the Nation; for the sake of the American citizenry; and for the continued well-being of our Nation’s inviolate rights and liberties.
THE ATF BUMP STOCK RULE DEMONSTRATES THE DANGERS INHERENT IN ADMINISTRATIVE ACTIONS.
AGENCY RULES MUST BE SCRUTINIZED CAREFULLY BY THE COURTS FOR THEY HAVE A TENDENCY TO OVERRIDE CONGRESSIONAL LEGISLATION.
The American public has historically given little thought to the relationship between Congressional legislation and Administrative action. That must change. The new ATF Rule makes clear that the public must become aware of the intricacies of Governmental action lest the American people lose their sacred fundamental rights and liberties. The American people should have learned long ago of the danger posed to a free Republic through the insinuation of so-called “elites” into the political process. What ensues is oft, appropriately referred to, as “the tyranny of experts.”
How has this come about? It has come about due, paradoxically, to the manner in which our Federal Government operates. The only true “checks and balances” in our Nation are those that rest in the enumerated rights and liberties of the American people, and singularly in the right of the people to keep and bear arms. If we lose that basic, inherent right, we have lost everything. That is not hyperbole. That is fact.
Congress makes law, yes. But, in faithfully executing Congressional statute, the Executive Branch must turn Congressional legislation into operational rules. That is the job of Executive agencies.
Congressional legislation provides the mandate through which agencies act. Agencies promulgate rules, allowing for implementation of law. However, that mandate isn’t open-ended. Congressional legislation establishes the parameters beyond which the Executive Branch must not venture. Yet, with disturbing regularity, we see the President, through the Executive agencies he presides over, overstepping his Constitutional authority.
In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme Court established the standard of Court review of agency interpretation of statute. The case is abstruse. The majority of Americans probably never heard of it. Yet, among legal scholars, the U.S Supreme Court Chevron case is likely the most often cited case. Hundreds of academic articles have been written about it. Hundreds more will probably be written. And our case law is legion with references to it.
In Chevron, the high Court wrestled with the amount of discretion that federal Courts—the Judicial Branch of the Federal Government—should give to administrative agencies when those agencies interpret law to promulgate operational rules through which Congressional acts are effectuated. The question for the Courts turns on whether statutory language is ambiguous. If the language is ambiguous, Courts will defer to the agencies—the experts—to resolve the ambiguity, unless the Courts determine the agency’s interpretation is unreasonable. But, then, the Court is itself interpreting statute: hence the conundrum for the Courts.
But that is not the case here, with the ATF Bump Stock Rule, and that is because the definition of ‘machine gun,’ in Congressional Statute, is clear and unambiguous, certainly as unambiguous as our common language, English, can be. The ATF Rule is particularly exasperating as it blatantly ignores the Congressional Statutory dictate in order to promulgate a rule to cohere to a political goal—thereby making a mockery of our system of laws and the very concept of the “Rule of Law” that politicians love to cite but rarely, if ever, actually adhere to.
The ATF Rule, as promulgated, sets forth that bump stock modifications of semiautomatic rifles convert semiautomatic rifles into machine guns because only one pull of the trigger is required to initiate multiple firing of the weapon. But, that statement is either true or it is false.
If true, then the semiautomatic firearm is, in fact, a machine gun. If not, then, the semiautomatic firearm remains a semiautomatic firearm because it is semiautomatic in operation. Rate of fire is irrelevant. Michael Curtis, supra, points out that, in the absence of an “accelerator spring,” a bump stock device—in its usual form (and keep in mind that the ATF Rule fails to consider and appreciate that bump stocks may have different configurations and operate in different ways)—requires one trigger pull for each successive shot. Performance is not a factor, as NRA clearly and correctly points out; the manner of operation is the only factor that comes into play.
Thus, unless Congress enacts legislation to redefine the expression, ‘machine gun,’—redefining it in a way that is contrary to industry use—the President of the United States, through the DOJ-ATF is not lawfully permitted to do redefine ‘machine gun’ on its own, which, it audaciously has done, even as the language in the Rule says otherwise. The DOJ-ATF action amounts to ad hoc rule-making; ad hoc rule-making, subject to the whims of political pressure, but presumptuously finalized as enforceable law. The DOJ-ATF Rule is nothing more than illegal Executive Branch edict. Its presence makes a mockery of law. It is a travesty. If allowed to stand, it amounts to the usurpation of our entire system of laws and justice, and legal jurisprudence.
THE NEW ATF RULE BANNING “BUMP STOCKS” PORTENDS A TOTAL BAN ON SEMIAUTOMATIC WEAPONS.
If allowed to stand, this ATF Rule dangerously undermines the Second Amendment because the Rule unlawfully conflates semiautomatic firearms and machine guns. If rapidity of fire becomes the de facto if tacit but clearly salient factor and new rule-made—as opposed to Congressional enacted—definition of ‘machine gun,’ which presently defines the expression,‘ machine gun,’ in terms of manner of operation, not performance, then all semiautomatic firearms will inevitably and invariably be subsumed into the nomenclature of ‘machine gun.’ Indeed, the mainstream media—comprising stooges and political hacks posing as journalists who know nothing about firearms’ operations and who have no desire to gain such knowledge—merely echoes the sentiments of antigun zealots. The mainstream media routinely argues that no appreciable difference exists between machine guns and semiautomatic firearms, anyway. The running narrative of these organizations is directed to motivating the public to demand, of Congress, the annihilation of the right of the people to keep and bear arms. The purpose of these “news” organizations has nothing whatsoever to do with news reporting. The Press, today, delivers propaganda masked as news. There is no appreciable distinction anymore between what appears in the Op-Ed sections of these “news” publications or in what is purportedly presented as “real” news, neutrally presented.
We have seen how antigun zealots create, through the artifice of the ‘assault weapon,’ a useful fiction through which semiautomatic firearms can be ostensibly lawfully banned. President Trump has, consciously or not, but certainly ill-advisedly and uncritically, created, through the DOJ-ATF Bump Stock Rule, a re-branding of semiautomatic firearm as machine gun based, essentially, on performance, albeit deliberately creating vagueness as to whether “bump stocks” necessitate one-trigger pull for every shot or multiple shots with one trigger pull in an attempt to “get around” the lack of any vagueness or ambiguity in the statutory definition of ‘machine gun.’
If Trump and the DOJ-ATF are allowed to get away with this subterfuge, then it is but a small step from a total ban on “bump stocks” to a total ban on all semiautomatic firearms, since rate of fire—utilized as the salient and subjective basis for elimination of firearms in the hands of civilians—will now provide the “ammunition” antigun zealots can and will latch onto in their unyielding zeal to continue to weaken the Second Amendment.And it is Trump, now, not Schumer or Pelosi, who has given them a vehicle they can and will use to destroy at once the citizen’s best means of self-defense and destroy, as well, the one truly capable defense in the citizen’s possession, to prevent or at least deter the onset of tyranny.
*As reported in Ammoland Shooting Sports News, John Crump, NRA instructor, has launched a petition drive to urge President Trump to reverse his position on Bump Stocks. A reversal of Trump’s position requires the rescission of the ATF Bump Stock Rule, which Trump should be able to accomplish. As Chief Executive, the President is sole head of all Departments, bureaus, and agencies of the Executive Branch of the Federal Government. Trump ordered creation of the rule banning bump stocks. He should be able to demand the rescission of it. Trump can and should assert that, after further consideration, he realizes his Memorandum to the DOJ, requesting a Rule banning bump stocks, was issued in error with little foresight; that the Memorandum he issued is administratively ill-advised, logically flawed, and legally unsupportable, and that, upon reflection, the President realizes the DOJ-ATF Rule does not serve the best interests of the American public, and, further, that the President realizes the Rule is inconsistent with the import and purport of the Second Amendment to the U.S. Constitution.
The Arbalest Quarrel supports John Crump’s worthy effort. The founders of the Arbalest Quarrel weblog have added their names to the petition. We urge all Americans who, like us, cherish and exalt our Bill of Rights, and especially our Second Amendment, to do the same. At the moment only a few thousand individuals have signed the petition. That is unacceptable. The petition calls for 100,000 signatures. There are tens of millions of guns owners. Where are their voices? They have not been heard.
Remember this: Nothing serves better to destroy our sacred rights and liberties than public apathy. If those among the public—deluded though they be—are encouraged to yell louder for ever more “gun control” measures than do those who continue to support the right of the people to keep and bear arms, then Congress will deliver the head of the Second Amendment, on a platter, to the destroyers of our sacred rights. And, the framers of our Constitution and founders of our Free Republic will have given their blood in vain. It is up to you!
Let us avoid the ill-fated national concealed handgun carry reciprocity measure. With the Democrats reclaiming control of the House of Representatives on January 3, 2019, it should come as no surprise to anyone that the Democratic Party leadership will be doing everything in its power to weaken the Second Amendment; and we can expect a flurry of anti-Second Amendment bills in the first few months when Congress commences business. We don’t need President Trump assisting them in this effort, whether he is doing so consciously or not.
Once you sign the petition, we also urge you contact the White House. Contact phone numbers are:
You may also write to the President. Information may be found at the White House website:
Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
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