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The Slippery Slope: Proposed ATF Rule Redefining “Machinegun”

The ATF recently published a Notice of Proposed Rulemaking (NPRM) on bumpfire stocks, redefining them as “machineguns.”  This NPRM is worse than I had anticipated  This is in part because the new rule has no Grandfather Clause. By the ATF’s own estimates there are more than 350,000 American bumpfire stocks (worth about $96 million) already in circulation. The proposed rule would declare these all contraband unregistered machineguns, with no compensation to their owners, and no method provided to pay the $200 tax to register them. (Because of the FOPA Hughes Amendment machinegun freeze of 1986.) Therefore, owners would be required to: a.) destroy them, or b.) permanently disable them, or c.) surrender them for destruction. If put into force, this would clearly be either an “illegal exaction” or an unconstitutional “taking”. This ex post facto law would fly in the face of many decades of Federal rulemaking and Federal jurisprudence, which until now  has almost uniformly included grandfather clauses whenever there are bans enacted [1].

More than just a reinterpretation, the new rule redefines, amplifies, and expands the wording of the National Firearms Act of 1934, essentially making a new law. This is a blatant bureaucratic overreach of the Executive Branch. Per the Constitution, only congress can make laws. The executive branch and its agencies can only enforce already legislated and duly enacted laws. Their new law would turn otherwise law-abiding citizens into un-prosecuted felons, overnight [2].

Just The Beginning

I predict that bumpfire stocks will not be the sole sacrificial lambs in this whole media-driven charade. This will be a proverbial Slippery Slope. There will be more–many more–types of firearms and firearms parts they’ll come after. The socialist-statist-collectivists will not stop. They won’t slow down their campaign against the Second Amendment until they feel they have thoroughly disarmed us. That is how they operate: They talk “compromise” and “common sense legislation”, but what they really want is a docile, neutered populace that has no means to resist their plans for womb-to-tomb domination under total government.

Please take a few minutes to read the proposed new definition of “machinegun” and the proposed ban, at this Regulations.gov web page: Bump-Stock Type Devices [3].

Again, this move is just another incremental step for the gun grabbers. Even though bumpfire stocks are impractical for most self-defense shooting, they still deserve Second Amendment protection, on principle.  If we don’t loudly speak up in opposition, then the gun grabbers will smell blood in the water and they will quickly come after more!  (For example: binary triggers, 3-gun match triggers, magazines over 10 round capacity, and entire classes of firearms–perhaps even all semi-autos that can accept detachable magazines.)

The Bumpfire stock rulemaking comment period runs until June 27, 2018 [3]. Your comments must not include foul language or profanity, or they  they be discarded. Comments can be sent to the ATF by U.S. mail, by FAX, or through their web portal.

If sending your comments by U.S. Mail, then use this address:

     Office of Regulatory Affairs, Enforcement Programs and Services
     Bureau of Alcohol, Tobacco, Firearms, and Explosives
     ATTN: 2017R-22 (Vivian Chu, Mailstop 6N-518,)
     99 New York Ave. NE, Washington DC 20226.

If sending your comments by snail mail, then be sure to annotate the top of your letter with:

“BATFE, Docket #ATF-2018-0002-0001”, your full correct name and address, and the date.

If using the web portal, be advised that the ATF has set the arbitrary limit of 5,000 characters!  This is for comments on a regulation and description with a 83,500 character count. That is absurd. But let’s make the best of it.  I had to break my comments up into four parts, to meet their 5,000 character limit.  Please write your own comments more tersely.

Your Words, Not Mine

I recommend that you write your own comments to the proposed rules. If you simply copy and paste any of mine, then they won’t be answered, perhaps only tallied.  To be effective, you need to write your own objections.   Please use mine only as examples of points that you can make.  Please re-phrase them in your own words.

The following is what I wrote:

I am strongly opposed to the proposed rulemaking that would ban so-called bumpfire stocks (ATF 2017R-22).

My specific objections are as follows. Note: I reserve the right to litigate on any or all of these. Furthermore EACH of the following numbered items are distinct separate objections and must be addressed individually with logical and complete specificity by the BATFE before the proposed rule is put into force:

1.) To declare existing privately owned devices contraband machineguns with no available method of registering them as machineguns constitutes an uncompensated taking.

2.) To declare existing privately owned devices contraband machineguns with no Grandfather Clause flies in the face of many decades of Federal case law, under Federal Jurisprudence. This also constitutes an uncompensated taking.

3.) The proposed redefinition of “machinegun” (per 26 U.S.C. 5845(b)) is vaguely worded. For example: What is meant by “function of the trigger”? Does that mean a trigger pull (only)? Does that mean a trigger release? Does that mean a pull OR release of a trigger? Or does that mean a pull AND release of a trigger? Does a partial pull of a trigger still constitute a function? Or must a pull of a trigger be through its entire arc to a stopping point to constitute a function?   Or must a pull of a trigger be through its entire arc to a stopping point and then a release to a reset point to constitute a function?   Or does a release of a trigger from a stopping point to a reset point to constitute a function? Or does a release of a trigger from a partially-pulled position to a reset point to constitute a function?

4.) More than a mere interpretation, it REDEFINES, AMPLIFIES and EXPANDS the wording of the NFA-’34 (26 U.S.C. 5845(b)). This is clearly bureaucratic overreach by the Executive Branch. Per the Constitution, only congress can MAKE laws. The executive branch and agencies can only ENFORCE already legislated and duly enacted laws.

5.) How can the BATFE redefine the meaning of the phrase “single function of the trigger” (per 26 U.S.C. 5845(b)) without the consent of congress?

6.) How can the BATFE further restrict the possession of Militia Weapons without a modification or repeal of the 2nd Amendment?

7.) By declaring a previously legal and constitutionally-protected “arm” suddenly “illegal” and “contraband” is a violation of the 2nd Amendment

8.) By declaring a previously legal and constitutionally-protected “arm” suddenly “illegal” and “contraband” and mandating its surrender to authorities would IDENTIFY the owner is thus a violation of the 5th Amendment protection from self-incrimination. It would also violate the 5th Amendment’s “taking” clause.

9.) By declaring a previously legal and constitutionally-protected “arm” suddenly “illegal” and “contraband” and mandating its surrender to authorities would violate the 4th Amendment protection from seizure without due process.

10.) I take exception to this wording: “Because such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle”. That is vague.

11.) I take exception to this wording: “…initiate a continuous firing cycle with a single pull of the trigger.” That is grossly vague and violates the plain simple, Black Letter Law and the manifold intent of congress when it enacted NFA-’34 See: 26 U.S.C. 5845(b))

12.) I take exception to this wording: “…these devices convert…” It is not a conversion to the operating mechanism. Rather, it is either an adjunct or a firing technique, or both.

13.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does holding your your thumb in your belt-loop when firing from the hip!

14.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does holding the buttstock of a rifle a short distance from your shoulder when firing!

15.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does holding a rifle loosely at either shoulder level or hip level when firing! See: https://www.youtube.com/watch?v=7RdAhTxyP64 [4]

16.) I take exception to this wording: “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.” The reset IS indeed physical manipulation of the trigger by the shooter because BOTH the shooter’s body (including the trigger finger) and the gun itself (including the trigger itself) are in motion, when under the force of recoil.

17.) I take exception to this wording: “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.” It is NOT automatic fire, as defined by congress in NFA-’34.

18.) I take exception to this wording: “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.” It is not producing automatic fire. The shooter’s trigger finger is still producing the fire, one shot at a time.

19.) I take exception to this wording: “With limited exceptions, primarily as to government agencies, the GCA makes it unlawful for any person to transfer or possess a machinegun unless it was lawfully possessed prior to the effective date of the statute.” The Hughes Amendment to FOPA restricts only machineguns, not semi-automatics. Only congress can redefine the word “machinegun”.

20.) I take exception to this wording: “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.” To “surrender them, destroy them, or otherwise render them permanently inoperable” would constitute an uncompensated “taking” which is not allowable under Federal jurisprudence.

21.) I take exception to this wording: “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 machineguns if this Notice of Proposed Rulemaking (NPRM) is implemented.” That is fallacious. Stocks that were spring-loaded or hydraulically buffered (to absorb recoil–but that unintendedly can create a bumpfire condition) did indeed exist and were on the open market before FOPA 1986. For example, Winchester’s Hydra-Coil stock was invented and produced starting in the early 1960s. It was made for variety of guns, including some semi-autos including the Remington Model 58 semiautomatic shotgun and the Remington Model 742 semiautomatic rifle (with a detachable magazine). See: https://www.si.com/vault/1963/09/09/596517/an-inventor-takes-the-kick-out-of-shooting [5]

Here is another example, patented in 1982: https://patents.google.com/patent/US4476969 [6]

22.) I take exception to this wording: “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 machineguns if this Notice of Proposed Rulemaking (NPRM) is implemented.” Rubber recoil pads (to absorb recoil–but that unintendedly create a bumpfire condition) did indeed exist and were on the open market long before FOPA 1986 or even before NFA-’34.. They have been marketed since before the year 1900. Here is just one example, patented in 1998: https://patents.google.com/patent/US6305115 [7]

23.) The proposed rulemaking constitutes an ex post facto law. Any ex post facto Federal laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3.

24.) Overall, the proposed rulemaking is null and void per Marbury v. Madison because it violates The 2nd Amendment.

25.) Overall, the proposed rulemaking is null and void per Marbury v. Madison because it violates The 4th Amendment.

26.) Overall, the proposed rulemaking is null and void per Marbury v. Madison because it violates The 5th Amendment. It is an illegal “taking” without “just compensation.”

27.) Overall, the proposed rulemaking is null and void per Marbury v. Madison because it violates The 6th Amendment — because it gives no opportunity for trial by jury in determining the applicability of the law to any particular device.

28.) Overall, the proposed rulemaking is null and void per Marbury v. Madison because it violates The 8th Amendment — because it mandates an excessive fine or prison sentence in relation to a newly-imagined “offense”.

29.) Overall, the proposed rulemaking is null and void per Marbury v. Madison because it violates The 10th Amendment — because it violates the unqualified “right to keep and bear arms” provisions of 44 sovereign State Constitutions. It also violates the 14th Amendments’s promise of due process.

30.) The the proposed rulemaking has no provision exempting bumpfire stocks that are owned by U.S. Citizens who are living abroad (such as missionaries or military servicemembers deployed abroad) who have their stocks (or firearms equipped with such stocks) in storage with relatives, with friends, or in commercial storage facilities. Hence they will not have the opportunity to “surrender them, destroy them, or otherwise render them permanently inoperable” before the changed law goes into force. This will make these citizens unprosecuted felons.

31.) The the proposed rulemaking has no provision exempting bumpfire stocks that are owned by U.S. Citizens who have large gun collections who have an indefinite number of stocks (or firearms equipped with such stocks) in their possession. By simply being disorganized, they will not realize the exact number that they own and hence not have the opportunity to “surrender them, destroy them, or otherwise render them permanently inoperable” before the changed law goes into force. This will make these citizens unprosecuted felons.

32.) The the proposed rulemaking has no provision exempting bumpfire stocks that are owned by U.S. Citizens who are ignorant of the fact that they have become contraband and that they must “surrender them, destroy them, or otherwise render them permanently inoperable” before the changed law goes into force. This will make these citizens unprosecuted felons.

33.) To restrict particular brands of stocks (per your mechanical definition) while not at the same time restricting ALL brands of stocks (per your mechanical definition) is an unconstitutional Bill of Attainder.

34.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does loosening the buttstock attachment screw, with some stocks designs. (This allows the stock to slide forward and backward enough to allow the trigger to reset.)

35.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so do the prosthetics worn by some arm or hand amputees.

36.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so do some rifle foreend or handguard designs with folding foregrips.

37.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does loosening the pistol grip attachment screw, with some stocks designs. (This allows the grip to slide forward and backward enough to allow the trigger to reset.)

38.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does someone with a tremor induced by a variety of ailments, including Parkinson’s disease.

39.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does someone who is highly training in rapid trigger manipulation, such as competitive shooter Jerry Miculek. See: https://www.youtube.com/watch?v=uFoM8S3JwZU [8]

40.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does changing the weight of a trigger spring.

41.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does applying FORWARD pressure to a semi-auto rifle’s foregrip, and allowing the trigger to be pressed toward the shooter’s trigger finger, by recoil.

42.) I take exception to this wording: “…these devices convert an otherwise semiautomatic firearm into a machinegun.”   By your new definition, then so does wrapping a soft rubber band around the shooter’s trigger finger, or around the trigger itself.

In summary, the proposed rulemaking is a horribly bad, vague, and unconstitutional new law.

I reserve the right to revise or extend these remarks, or to post additional remarks within the defined comment period.

Sincerely,  – James Wesley, Rawles

Conclusion

Please speak up folks, or our rights will surely get trampled.  Again, even if you don’t own a bumpfire stock or ever plan to buy one, it is the principle that is the issue and inevitably all of our semi-autos are at risk of bans. If we give them an inch and they will take a mile [9].

Please write your polite comments and send them to ATF in the next few weeks. Mark some free Saturday or Sunday on your calendar, so that you don’t forget to do that writing. As Benjamin Franklin put it: “We must all hang together or surely we will all hang separately.” – JWR