Bump stock ban overturned in the 5th circuit

[Aguila Blanca]

https://www.usnews.com/news/us/arti...ls-court-blocks-ban-on-rapid-fire-bump-stocks

This means there is now a circuit split, which may result in the bump stock ban being reviewed by the SCOTUS. It was refreshing to me to see that the majority at the 5th Circuit decided that words have meaning. Who'd a' thunk it?

The full appeals court Friday sided with opponents of the ATF rule. They had argued that the trigger itself functions multiple times when a bump stock is used, so therefore bump stock weapons do not qualify as machine guns under federal law. They point to language in the law that defines a machine gun as one that fires multiple times with a “single function of the trigger.”

“A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machinegun’ set forth in the Gun Control Act and National Firearms Act,” Judge Jennifer Walker Elrod wrote in the lead majority opinion.

However, as to this:

Most of the majority also agreed that if the law is ambiguous, it's up to Congress to address the issue under a court doctrine known as “lenity."

There is nothing ambiguous about the particular regulation in question. It clearly and explicitly states that a machine gun is a firearm that "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."

 

[44 AMP]

Its not at all ambiguous its just not popular with the "ban them all, every chance we get" crowd.

I think the judge was entirely correct stating how, when a law is ambiguous, it is Congress's job to correct that. The court did not say the current law was ambiguous, in fact its reading of it in its ruling clearly shows that it is not.

Correct me if I'm wrong, but wasn't the question of bump fire stocks reviewed and APPROVED by the ATF under the Obama administration??

Not that it matters directly who was or is in office, but wouldn't you say that changing an established and clear ruling years after the fact, with neither Court or Congressional involvement, appears to be something being done simply to curry political favor??

 

[Aguila Blanca]

Not that it matters directly who was or is in office, but wouldn't you say that changing an established and clear ruling years after the fact, with neither Court or Congressional involvement, appears to be something being done simply to curry political favor??

Or responding to political pressure/influence/interference.

I've been exposed to that. Not fun. I try my best to keep a low profile these days. I don't want to ride that merry-go-round again.

 

[Tom Servo]

wasn't the question of bump fire stocks reviewed and APPROVED by the ATF under the Obama administration?

Yes, and then the Trump administration gave them vague directives and authority to review the ruling. Given that authority, the ATF changed the definition of "machine gun." The ban isn't so much the problem as who made it. Regulatory agencies can't change the law as they see fit, and the Supreme Court recently said so in West Virginia v. Environmental Protection Agency.

So we have two problems:

• a regulatory agency making regulations, which isn't their wheelhouse
• confiscation of property without compensation (bump stocks were retroactively deemed post-86 machine guns. The only two choices were to turn them in or destroy them.)

Neither can reasonably be defended in an unbiased court.

 

[Metal god]

This was not “a” judge this was an en-banc panel decision. Which is interesting to me because I’m under the jurisdiction of the 9th circuit and EVERY en-banc panel at the 9th has ruled against the 2nd amendment. So I guess it turns out they can rule the other way haha ,

What is that definition of semi auto vs full auto . I’ve read some definitions as a semi auto fires one round with each “pull” of the trigger ? Is that one of the official definitions? If so I have more to add but will wait to confirm that is the definition.

 

[Aguila Blanca]

What is that definition of semi auto vs full auto . I’ve read some definitions as a semi auto fires one round with each “pull” of the trigger ? Is that one of the official definitions?

The National Firearms Act of 1934 defines "Machine gun" as follows:

"(b) The term "machine gun" means any weapon that shoots, or is designed to shoot, automatically or semiautomatically, more than one shot, without manually reloading, by a single function of the trigger."

The NFA does not define either "automatic" or "semiautomatic." However, other federal laws or regulations do. For example:

18 USCS § 921(28)- The term "semiautomatic rifle" means any repeating rifle which utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.

 

[Metal god]

Ok great the semi auto definition is what I was looking for . Is it arguably to say if you have not let up pressure on the trigger after you pull it you are still on the first pull ? Meaning what’s the definition of a single pull of the trigger .

I forget which trigger but there is one out there that does a “forced” rest . Meaning you pull the trigger once and don’t let up pressure and the BCG forces the trigger to reset . Resulting in your continued pressure from the first and “only” ???? Pull fires the weapon again ???

The bump stock is similar and not at the same time . One can argue you never pulled the trigger . You just put an obstruction in the way and pushing the firearm forward cause the trigger to actuate . You don’t actually “pull” the trigger . You hold your finger stiff inside the trigger guard and the rifle recoiling back-and-forth causes the trigger to bounce off your finger . You don’t even need your finger for it to work , finger works best but any stationary obstruction would work .

IDK there just seems more to this then a simple pull of the finger .

 

[44 AMP]

Besides being technical, this gets a little tricksy to explain, particularly because the technical definitions are not quite the same as our conversational ones, but I'll try.

Single function of the trigger means just that, it can be the pull, OR the release. The "binary" trigger systems work on that, firing one round when the trigger is pulled and another when the trigger is released. This allows rapid fire, but passes the legal test because only one round is being fired for each action of the trigger.

Bump fire and "forced reset" systems use the built in function of the disconnector, and, while details vary with different designs, in general, they use the recoil of the rifle moving the mechanism just enough to reset, then pushing the rifle back against your unmoved finger on the trigger to fire another round. THis is NOT full auto fire, the trigger is actually being "pulled" for each shot, but you don't FEEL it.

In other words, you pull the trigger once, and hold it, and the rifle bounces back and forth enough to reset and then retrip the trigger to fire. This also meets the legal definition because the trigger is being being "pulled" each time, so each shot is a single "function" of the trigger.

(don't tell the ATF) but this same effect can be created with certain rifles without a bump fire stock or any other special mechanisms. With some designs, holding the rifle in just the right way and "feathering" the trigger in just the right way can result in 2-3 shot bursts. But is a learned skill, only applies to certain guns, and isn't easily repeatable for sustained fire. And it is legal. Each shot is the result of a single trigger function.

As mentioned the primary point to the ruling is not specifically what the definition was changed to, but the fact that the ATF changed it, without the proper legal authority to do so.

If CONGRESS wants to rewrite the definitions, and does so (and it passes and becomes law) that is one thing. It's the correct "due process".. ANY regulatory agency (all members of the Executive branch) does not have the legal authority to do that. Technically, that would be "usurping the authority of Congress".

In this case, (I believe) the ATF's change of status on bump stocks was not thrown out because it was a bad ruling (though, it is) but because the ATF didn't follow "the rules" about who can make such a change.

Now we get to see if the ATF just accepts it, or if they appeal....
In my opinion, they should just "shut up and sit down" and I'd like to see them humbly beg forgiveness for screwing up, but being who and what they are, I won't put any money on that happening....

 

[Metal god]

Thanks AB that all makes sense . The forced reset trigger I’m talking about uses the BCG that actually forces the trigger to reset . As far as I remember you really only “pull” the trigger once and it will continue to fire . The difference between a machine gun FCG and this trigger is you can feel the actual trigger being forced forward to reengage the sear resulting in your continuous pressure on trigger to fire the weapon again . Where with a machine gun the trigger it self does not reset while you hold it back and the continuous fire is all controlled from inside the receiver .

I’ll look for the trigger name .

 

[Metal god]

It’s the FRT trigger
https://m.youtube.com/watch?v=QDQEdQLxBn8

 

[Aguila Blanca]

The problem is that the legal definitions have not kept pace with technology. When the NFA was written, everyone knew and understood what a "single function of the trigger" meant. And then people came up with bump stocks, binary triggers, forced reset triggers, shoelaces ... and (as they used to say in Victorian-era novels) the game was afoot.

 

[44 AMP]

The problem is that the legal definitions have not kept pace with technology

I disagree with this, slightly...

I don't think technology has rendered the definitions obsolete, I think that it is "selective redefinition" by people who see that as the route to increasing their power and control, either personal, or for their group by redefining things to put them into the category of things they have control over.

Simply put, "machineguns are restricted. If we can redefine X into being classed as a machinegun (and get away with it) we can add it to the list of things we control (and can ban)...."

I believe THAT is "the game that is afoot."

And, its not a new game, either....

 

[zukiphile]

Before reading this decision, I didn't realize (or think through why) Chevron deference didn't apply in criminal matters. The reasoning for construing criminal sanctions strictly against the government seems compelling generally, not just in criminal matters. However, that isn't law, just my opinion.

The problem is that the legal definitions have not kept pace with technology. When the NFA was written, everyone knew and understood what a "single function of the trigger" meant.

I don't locate the current problem with the way the NFA was written 80 years ago. People still know what the words mean, and some people wish it meant something else. "Single function of the trigger" isn't a single "function of the trigger finger" or "a single function of the decision to press a trigger". That some people may pour a lot of effort into misunderstanding a phrase doesn't make it actually ambiguous.

I think that it is "selective redefinition" by people who see that as the route to increasing their power and control, either personal, or for their group by redefining things to put them into the category of things they have control over.

Simply put, "machineguns are restricted. If we can redefine X into being classed as a machinegun (and get away with it) we can add it to the list of things we control (and can ban)...."

Certainly. I believe there is a cultural component to it as well. Remember the AWB prohibition on bayonet lugs? I believe there's an animating drive in some restriction advocates that is peeved by people enjoying firearms. For some people, having an AR with a bayonet lug just like a service rifle is part of the allure. For others emptying the magazine quickly gives them a case of the giggles. Is a NY compliant AR stock anything more than a state way to tell people that they can't have rifles that look like service rifles? Why would anyone care what someone else's riffle looks like except to ruin someone else's fun?

Yes, making a hash of definitions in order to remove congressional boundaries on the exercise of agency power is central to the playbook in expanding the regulatory state. Yet, there's also a weird spite involved in some of these gun regs, and there is something similar arising on free speech issues.

I've never had use for a bayonet lug, camo, plate carrier, bump stock or binary trigger, but it doesn't diminish me or anyone else if someone wants to possess them all.

 

[Aguila Blanca]

The problem is that the legal definitions have not kept pace with technology. When the NFA was written, everyone knew and understood what a "single function of the trigger" meant.

I don't locate the current problem with the way the NFA was written 80 years ago. People still know what the words mean, and some people wish it meant something else. "Single function of the trigger" isn't a single "function of the trigger finger" or "a single function of the decision to press a trigger". That some people may pour a lot of effort into misunderstanding a phrase doesn't make it actually ambiguous.

I agree completely. The fact that the language ISN'T ambiguous is what has the gun grabbers tied up in knots, and what leads to things like trying to say "a single action of the trigger finger" even though the legal definition doesn't mention "finger" at all. It's an entirely mechanical definition -- which I think is appropriate when describing a piece of mechanical equipment.

What I meant about the definitions not keeping up with technology is that the aim of the NFA of 1934 was -- essentially -- to make it prohibitive for the ordinary citizen to own a Thompson submachine gun. Sure, there were other machine guns in existence, but I don't thank the government was concerned about hoodlums running around with Browning M2s. They were after the Thompson.

The Thompson, depending on which model, had a rate of fire of 600 to 800 rounds per minute. An AR-15 with a bump stock can achieve a rate of fire of 1400 to 1500 rounds per minute, yet it's still (by definition) a semi-automatic rifle. From our perspective, it's a triumph of ingenuity over regulation, but from the perspective of lawmakers who generically think of anything that shoots fast as "a machine gun," you can understand why they have their knickers in a twist.

 

[Metal god]

The definitions matter and that’s all that matters and why I started my first post with asking what the definition was and the next post , is there an argument to be made ?

The great or sad thing about legislation/legislators is they get to define . Look no further then any assault weapons ban . They not only get to define what that is , they don’t even have to keep with the original meaning/s or general understanding of assault weapon . It then becomes law punishable by criminal conviction.

As to other definitions, do we need to ask what a man or a woman is , the courts can turn a mandate into a tax or lawyers can argue dangerous “or” unusual when it’s clear it’s dangerous “and” unusual with some courts siding with the former .

Now we have the ATF changing the definition of something to something they never agreed with in the past . Not sure how anyone in these times can think for a second any definition is what it says and there is no ambiguity. Don’t get me wrong , I’m not buying many of those arguments out there but many do a several of those people have the power to change the definition simply by voting it has changed .

 

[Aguila Blanca]

So we have two problems:

a regulatory agency making regulations, which isn't their wheelhouse

If the statute assigns to an agency the authority to adopt regulations, it certainly IS their wheelhouse to do so. Much of the body of federal and state law is actually administrative regulations adopted pursuant to statute.

But there is a hierarchy. A regulation can't cancel or supersede a statute. So if the NFA defines a machine gun as a firearm that fires more than one round with a single function of the trigger, regulations can't change that definition.

But the Congress can change it -- by passing a new law.

 

[Metal god]

Exactly and my point . It doesn’t matter what any definition is now because the legislature can change the definition and there new definition is now the definition period .

But I’ll go back to the assault weapons language. Sometimes the actual definition really doesn’t matter as long as the population believes it is defined in a certain way it de facto becomes that thing . Why because they will start voting for the people that defined it in the same way they understand it which then results in new legislation with wording representing the new definition .

 

[44 AMP]

..the aim of the NFA of 1934 was -- essentially -- to make it prohibitive for the ordinary citizen to own a Thompson submachine gun.

That certainly is something it did do, but I have a different theory.

I believe the aim of the NFA 1934 was to provide work (jobs) for those govt employees (T-men aka Treasury agents) who no longer had anything to do since the repeal of Prohibition took away their function.

We were in the middle of the Great Depression (though at the time no one knew it was the middle, all the knew was there was no end in sight) and those kind, compassionate people in the govt were simply trying to take care of their own...(yes, sarcasm, if you didn't notice).

So they passed a TAX law, that originally only affected a tiny percentage of the public, one that almost no one would care about, and which appeared to focus on weapons favored by the criminal underworld, and provided new work for those people who were no longer enforcing Prohibition after its repeal. No doubt a Win/Win in their eyes.

From what I've heard, up until about 1968 or so most violations of the NFA were usually treated as TAX matters, not criminal violations. Get caught with an unregistered (and so untaxed) machine gun or sawed off long gun, (and no other crime) often it was a matter of register the gun, pay the tax, and then get on with your life. Going to prison wasn't automatically the penalty. That changed (I think) in 68, and from then on, not having a registered, tax paid NFA item was a criminal matter, first, and foremost....

As to the legislature being able to define language, that has been one of our "problems" for hundreds of years. The reason we have "law dictionaries" is because words in law (and in court) have to have fixed standard meanings in order to be fairly applied and equally understood by all. And, in our system, it is the Legislature that creates those definitions, adding new or revised definitions when needed (or as they see fit). Look at the structure of every bill /law, there is a specific section of it for "definitions".

One common example of the meaning of common words being different in law and in common usage is "minute".. Most people use "minute" and "moment" interchangeably in common conversation, but in court a "moment" is a brief (unspecified) period of time, while a "minute" is 60 seconds, the full standard unit of time measurement.

IF you testify that you "waited a minute, then pulled out into the intersection.." you've just told the court you waited a full 60 seconds before entering the intersection, and if it turns out you did not wait that long, you've just (possibly) committed perjury (making a false statement under oath).

If you had said "moment" instead of "minute" that would be a different matter.

We don't have to like, or even agree with what ever definition is adopted as the legal definition, but we have to have them, or the system simply won't function. The place to argue and define what the legal definition is, is NOT in any agency's regulations, but in Congress.

And that is essentially the reason the court tossed the ATF reclassification of bump fire stocks to "machine guns". The arguments about trigger function, shots fired, rate of fire and all that are, in this case, red herrings, seeking to confuse the issue and obscure the fact the court (fortunately) did focus on, that the change to the definition was not the ATF's to make.

 

[zukiphile]

What I meant about the definitions not keeping up with technology is that the aim of the NFA of 1934 was -- essentially -- to make it prohibitive for the ordinary citizen to own a Thompson submachine gun. Sure, there were other machine guns in existence, but I don't thank the government was concerned about hoodlums running around with Browning M2s. They were after the Thompson.

The Thompson, depending on which model, had a rate of fire of 600 to 800 rounds per minute. An AR-15 with a bump stock can achieve a rate of fire of 1400 to 1500 rounds per minute, yet it's still (by definition) a semi-automatic rifle. From our perspective, it's a triumph of ingenuity over regulation, but from the perspective of lawmakers who generically think of anything that shoots fast as "a machine gun," you can understand why they have their knickers in a twist.

I see. In 1934, the physical mechanism for putting a lot of lead downrange was a fully automatic rifle or PCC, but the tech has evolved to let people put a lot of lead downrange with semi-automatic rifles and PCCs.

My obstacle to understanding why anyone would really have their knickers twisted over this would apply to 1934 technology too. (The specific historical motives for the NFA are hard to tease out into individual components given the crime associated with prohibition, the depression and the legal expansion of the scope of government during that period.) I'm not convinced that fully automatic fire or an ersatz version of it is typically an advantage, but I'll admit that like the "shoulder thing that goes up" it may be described as an advantage by people arguing a ban.

 

[44 AMP]

The Thompson, depending on which model, had a rate of fire of 600 to 800 rounds per minute. An AR-15 with a bump stock can achieve a rate of fire of 1400 to 1500 rounds per minute,..

This is true, but also a bit of a "trap". RATE of fire (cyclic rate) and AMOUNT of fire possible are very different numbers.

Underinformed people frequently believe that the rate of fire (rpm - rounds per minute) of a gun is how many bullets can be fired in a minute, but it's not. Its the rate the mechanism operates at.

The only firearms that can come close to actually firing as many rounds in one minute as their cyclic rate are solidly mounted belt fed machineguns with enough ammo linked into one belt to fire for a full minute. NOTHING else can come close. Other factors get in the way, like reloading, for one....

Look at it this way, the fastest human sprinters have hit speeds of 27mph in the 100yd dash. That's the RATE they are running. Can they run 27 miles in one hour? No. Other factors get in the way.

Ed McGivern, possibly the fastest human pistol shooter ever, had a record that stood literally for generations. 10 shots on a playing card at 20 feet in 9/20 of a second. Let's be "generous" and bump that time up to a full 1/2 second. 10 shots (ON TARGET) in 1/2 second. That RATE of fire would be 1200 rounds per minute. McGivern did it using two DA revolvers!!!!

Could anyone actually fire 1200 rounds from two revolvers in one minute? I'd lay considerable money against it.....

With a light recoiling semi auto (say a .22 cal) its not difficult to fire 10 shots in 3 seconds and lots of people are faster than that. 10shots in 3 seconds is "only" 200rnds per minute, but very few people could manage firing 200 shots in a single minute.

Look at it yet another way. Lets say you are shooting an M16, with a cyclic rate of 900rpm. Sound huge, right?? But what can actually be fired in 1 minute is a lot less. Ler's say the gun is fed from from the standard 30 rnd box. Now, to get to 900 rounds you'd have to have 30 magazines. And, lets say you are very fast and swapping mags and returning the gun to firing only takes you 1 second.

That would be 30 seconds of the time it takes to fire 900 rnds where the gun is NOT firing. Fully half a minute. That should clearly show how it is not possible for a shooter with regular equipment to meet that 900 rnd mark in one single minute time.

Simply put, the cyclic rate is the rate the mechanism cycles at and it is faster (considerably faster, usually) than the gun can actually be fired.

With hand held weapons, short bursts of fire at a high rate are possible, firing constantly for a full minute and meeting the cyclic rate of the gun in actual rounds fired, is not.

An AR-15 with a bump stock can achieve a rate of fire of 1400 to 1500 rounds per minute,..

Just out of curiosity, where does this number come from????
A bump stock CANNOT fire the gun faster than the cyclic rate (just not physically possible) and my (admittedly dated) books state the M16 has a cyclic rate of 700-900rpm. Just checked, and the Internet agrees with my old books. Internet gives a slightly higher top rate for the M4 carbine, 700-970rpm, and gives 800rpm as the cyclic rate for the AR-15.

SO, WHAT AR-15 runs at 1400-1500rpm???? With, or without a bump stock???

Seriously, I think that 1400-1500rpm RATE is BS.