Those pesky courts keep overturning the ATF - Bumpstocks

[RickD427]

Thank You for your concise explanation. One further question, if I may.

Are the individual services COA, one step above "Courts Martials" in their individual service, or is there an interim court step involved?

Pacrat,

The military justice system works a little differently than the civilian justice system, so its kinda hard to give a concise reply to your question. Two things that are different are: 1) Article 15 proceedings and 2) The Convening Authority.

When a service member does something stupid and his/her/its superiors decide that they wish to fang the member, they get to decide between a non-judicial punishment under Article 15, or a Court Martial. There really isn't a civilian equivalent to Article 15. It disposes of the matter without the creation of a criminal record. But unlike civilian diversion programs, the offender can still get jail time without being convicted.

If they elect to conduct a Court Martial, those come in three different flavors, Summary, Special and General. Summary and Special Courts Martial are roughly equivalent to misdemeanor trial courts. A General Court Martial is equivalent to a felony trial.

Unlike a civilian trial, a military trial has a Convening Authority, typically the offender's commanding officer, or superior in the chain of command with the authority to order the Court Martial. If the offender is found guilty, the Convening Authority must approve the verdict and sentence. If the Convening Authority is dissatisfied with the outcome of the Court Martial, they can set aside the verdict or reduce the sentence. That's kinda like an appeal, even though it isn't an appeal. This is a pretty significant difference from the civilian world. The Convening Authority isn't a judge, or even a lawyer (unless the offender was a member of a court or legal staff).

Once the Convening Authority has approved a verdict and sentence, then the chain of further appeal is to the service's Appellate Court, COMA and then SCOTUS.

[BobB35]

The problem is YOU FOLKS keep making your linchpin the following:

"Bumpstocks are not machine guns."

That's the hill you guys keeping point to - to die on.

Doesn't matter if it's a military case, a civil case or a criminal case. You can point to any case.

It doesn't matter what the definition is.

Remember folks:


"Intent"


While the bumpstock by design is NOT a machine gun, the intent of the bumpstock is to turn a semi-automatic into a machine gun - if only temporarily.

And that is what will cause the bumpstock to come under heavy scrutiny should it come before SCOTUS.

And I do not think it'll escape scrutiny - i.e., after SCOTUS slaps the ATF around a little with a "sternly worded paragraph", SCOTUS will then recognize the regulation of bumpstocks as an NFA item.

=8-|

So Im curious. If you change Bumpstock to Stabilizing brace and MG to SBR

Does all this play out the same way? Your logic on intent would seem to indicate so and if that's the case then the ATF can do pretty much whatever it wants by regulation.

[TrappedinCalifornia]

The problem is YOU FOLKS keep making your linchpin the following:

"Bumpstocks are not machine guns."

That's the hill you guys keeping point to - to die on.

Doesn't matter if it's a military case, a civil case or a criminal case. You can point to any case.

It doesn't matter what the definition is.

Remember folks:


"Intent"


While the bumpstock by design is NOT a machine gun, the intent of the bumpstock is to turn a semi-automatic into a machine gun - if only temporarily.

And that is what will cause the bumpstock to come under heavy scrutiny should it come before SCOTUS.

And I do not think it'll escape scrutiny - i.e., after SCOTUS slaps the ATF around a little with a "sternly worded paragraph", SCOTUS will then recognize the regulation of bumpstocks as an NFA item.

=8-|

I have no dog in the hunt insofar as bump stocks. However, I have consistently argued precisely what the military court ruled; i.e., that the ATF, at the behest of Trump, acted inappropriately. Whether Trump did so as a 'strategy' in terms of assuming the courts would negate it or out of some misguided notion, I can't say. What I have, repeatedly, observed is that even Dianne Feinstein, who we know wants all this stuff (including the guns themselves) gone, warned him he couldn't do it this way.

Insofar as meeting the existing definition, as the ATF said three times previously, it doesn't. You and I agree on that. Where you seem to be held up is in how the definition of "machine gun" is applied. It has nothing to do with 'timing' you keep incorporating and everything to do with the definition, contrary to what you assert...

Of course a bumpstock is not a machine gun.

Any dufus with an IQ of 75 and half a brain gets that.

That's not the question though...

The real question is:

Are bumpstocks a modifying device for the purpose of temporarily moving an item from that category of NON-NFA to NFA?...

Again . . . the real issue is whether or not a bumpstock takes a NON-NFA item and - ALBEIT - makes it temporarily an NFA item.

You can spend all day talking about the definition of machine gun, chevron defense, the fact the ATF took two different positions at different times, etc.

Doesn't change the fact that that question will be at the forefront when it is hashed out in front of SCOTUS.

Despite all of the ATFs screwups, chevron defense and all, I can see SCOTUS saying that bumpstocks may be regulated under NFA as an attempt to take an arm that is commonly held and suitable for self-defense and modify it into something else that is either unusually dangerous or more suited as a weapon of war.

=8-|

(It's Chevron Deference, not defense, by the way. Although Chevron Doctrine is also used. It's something applied by the courts rather than something asserted by the defendant.)

It's sad that people can be so dense as to not realize what the actual fundamental question is - the very same question everyone is trying to ignore.

Anyone with an IQ of 75 can tell that a bumpstock is NOT a machine gun.

That same person with IQ of 75 can tell that a bumpstock temporarily turns a non NFA arm into an NFA arm.

And if you think SCOTUS has an IQ less than 75, well good luck with that.

I myself would not bet on it.

=8-|

The problem is YOU FOLKS keep making your linchpin the following:

"Bumpstocks are not machine guns."

That's the hill you guys keeping point to - to die on.

Doesn't matter if it's a military case, a civil case or a criminal case. You can point to any case.

It doesn't matter what the definition is.

Remember folks:


"Intent"


While the bumpstock by design is NOT a machine gun, the intent of the bumpstock is to turn a semi-automatic into a machine gun - if only temporarily...

Perhaps you would now be willing to get past your continual, temporal references. Once again, simple possession is all that is required under the statute. Possession implies intent for the purposes of the statute and that intent has nothing to do with temporary or permanent. You could proffer the defense that you never intended to install the bump stock (or any of the other parts) and you could still find yourself convicted for constructive possession...

While there's some debate regarding that under California law, bear in mind that these are Federal charges.

Now, while you and I may agree that a bump stock is not a "machine gun," as I showed you, since 2018, it meets the definition insofar as how ATF interprets that definition. Thus, again, it has nothing to do with the time frame and is tied to possession. Why? My assumption has always been that if intent were the key element, it would place a burden on prosecutions which would be difficult to overcome, thus rendering the restrictions largely ineffectual.

Thus, intent is drawn from possession. From ATF's National Firearms Handbook, p. 14...

The definition of machinegun also includes a combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. An example of a firearm meeting this section of the definition is a semiautomatic AR15 rifle possessed with an M16 bolt carrier, hammer, trigger, disconnector and selector. If the semiautomatic AR15 is assembled with the described M16 parts and the rifle is capable of fully automatic fire, the weapon possessed in conjunction with the M16 parts, whether assembled or not, is a machinegun as defined.

In that sense, were the Legislature to incorporate paper clip, rubber band, or any of a number of other items in the statute, possession of the item in conjunction with the firearm could be used to infer intent to create a "machine gun." The key, as we know, is possession of a specific part or combination of parts. "The AR15 auto sear is a machine gun as defined by 26 U.S.C. 5845(b)." (p. 140) Alternatively (p. 141, bold emphasis mine)...

Any weapon which shoots automatically, more than 1 shot, without manual reloading, by a single function of the trigger, is a machine gun as defined in 26 U.S.C. 5845(b), the National Firearms Act (NFA). In addition, the definition of machine gun also includes any combination of parts from which a machine gun may be assembled, if such parts are in possession or under the control of a person. An AR15 type assault rifle which fires more than one shot by a single function o the trigger is a machine gun under the NFA. Any machine gun is subject to the NFA and the possession of an unregistered machine gun could the possessor to criminal prosecution.

Which is why possession of an M16 bolt carrier group sans possession of the other parts is legal. You might consult this thread... ATF letter to Colt.

Note the continual reference to "definition" and "as defined" in all those citations and the pages dedicated to it in the case this thread is about. It's why the definition IS what matters. I would argue that, on a pragmatic level, the interpretation of the definition has become what matters. It's why we spend so much time examining the statutes and why we get so many threads regarding "Is this legal?" which refer to the definitions provided in the statutes.

It's why, in the case this thread is examining, the court punted regarding the assertion made by the appellant in this case...

...Appellant raises two questions of error. He argues first, the Government failed to state an offense when it alleged that he possessed a machine gun, because the "bump stock" he possessed did not meet the definition of "machinegun" under... and, second, that the military judge erred...

Instead, addressing the process by which the definition was interpreted vis a vis bump stocks. Does the bump stock allow for full auto fire? As the military court said, to them, it doesn't, but they do not presume to divine legislative intent and neither should the ATF. If the Legislature wants to include specific parts within the definition of what constitutes a "machine gun," then the Legislature, not the court and not the ATF, must do so. Put another way, when the definition was established legislatively, there were parts which were commonly understood as allowing conversion to full auto fire when assembled in combination. If 'new' parts have now entered the market which allow for "full auto" fire (real or simulated), then the Legislature will have to specifically incorporate them rather than leaving it 'ambiguous' so that a court or a regulatory agency can simply 'interpret' the definition as incorporating them.

What SCOTUS may or may not do with that is sheer speculation.

It is not what your understanding is or my understanding or anyone with an IQ of 75's understanding is regarding whether a bump stock is a "machine gun." Such fails to address the question, even as you pose it. There's every chance it's not even about how SCOTUS may understand it. It could very well come down to what SCOTUS divines as the Legislature's understanding and intent vis a vis how they crafted the definition and the method by which that definition is being interpreted vs. the clarity (or lack thereof) provided by the Legislature.

But, again, that's speculation and only reflects what the court, in this case, addressed by altering the question as asserted by the appellant. You know, the standard you have been continuously and obstreperously imposing on the other thread and which you are sidestepping here by imposing what you perceive to be 'the fundamental question' SCOTUS will deal with. They may well do so; but, dictating to SCOTUS what they will address and/or predicting what they will decide upon is a perilous endeavor.

[bohoki]

It's sad that people can be so dense as to not realize what the actual fundamental question is - the very same question everyone is trying to ignore.

Anyone with an IQ of 75 can tell that a bumpstock is NOT a machine gun.

That same person with IQ of 75 can tell that a bumpstock temporarily turns a non NFA arm into an NFA arm.

And if you think SCOTUS has an IQ less than 75, well good luck with that.

I myself would not bet on it.

=8-|

depends on the science i say what they need to do is put a force gauge on someones finger use the device and count the pulses of the force gauge and if they correspond to the number of rounds fired to me that seems like absolute proof that it was firing one shot per trigger pull

this should also work with the fart triger too

[bohoki]

any argument taken to the extreme will always end up in semantics