Why Isn't There A Legislative Push to Get Rid of the "Sporting Purposes" Clause of the GCA?

[Glenn E. Meyer]

That is correct. However, it is an indication of priority to me. Many of the 'progun' folks are so lacking in knowledge as to be detrimental. One only has to look at Sec. of Education DeVos. She was asked about carry and guns in school and went on to babble about grizzly bears in the boonies. Looked like a fool and was mocked as such. An affluent, upscale person who really doesn't understand the issue. However, her social class is a priority. Gun nuts aren't to the leadership.

Research clearly shows the energy in the gun world is in self-defense but we still get 'sportsperson' progun babble from many. I'm a hunter - blah, blah. Who cares.

Discussing marginal tax rates, interest, push throughs and back - so what - also. Nice priorities but not high on the priority list for defending and/or enhancing gun rights.

Have a state of the union address that contains a clear statement that decent reciprocity, HPA, a SAGA (eliminating state bans), SHARE, freeing the post offices are equal to letting Paris Hilton get her dad's money without taxes or cutting the deduction on graduate school tuition - then we can talk. Otherwise - you've been had for your vote.

It might take the threat of lowering financial support at a time when the GOP might have some vulnerabilities that will cause priority changes. Sure, then you get an antigunner - but if you are passive in defense - you lose.

[dogtown tom]

LogicMan

They do however want to be able to sell military guns, and not have them banned because they aren't suitable for "sporting purposes" I would think.

Name one US manufacturer that has said they want to import US military surplus firearms.

The sporting clause doesn't ban the manufacture of "military guns", just the importation.

Quote:

They just tried to ban M855 ammunition not long ago, claiming it was "armor piercing," which was an absurd claim and the epitome of arbitrariness IMO.

Not really absurd when you read the law ATF was basing that ruling on.

Sounds pretty arbitrary to me. Just because something wasn't around at the time the law was passed doesn't mean they can't count as a sport.

Well, you're wrong. Administrative law is chock full of regulations that require legislative intent. When ATF (or any Federal agency) oversteps then congress or the courts will spank them.....as they did with the old "once a rifle, always a rifle".

Would have to completely disagree with the idea that the government is "us," but that's a different discussion (especially when you look at all the different government agencies out there).

The same "us" that wrote the Constitution allows for all those different government agencies to implement regulations based on a Federal law.

But yes, the sporting purposes clause is not going to be used to infringe on gun rights if we have pro-gun people in office and on the courts. The issue to me though is in stopping the anti-gun people, when in power, from using said clause to infringe on our rights.

Sorry, wrong again.
A "pro-gun" legislator can't magically make an existing federal law disappear.
And neither can a "pro-gun" judiciary...........they must be able to rule in a court case that the Second Amendment is being infringed. As of today, that hasn't happened with regard to the sporting clause.

[dogtown tom]

ATN082268

Laws are frequently broad, vague and complex. It wouldn't surprise me if laws in general contained one or more vague clauses so the relevant bureaucracy can basically do the job of Congress. After all Congress can't be bothered with doing their own job, can they?

Nailed it.
Congress ain't got time to read laws, they leave that for the civil servants and courts to figure out.

[LogicMan]

Not really absurd when you read the law ATF was basing that ruling on.

If you read the law they were basing it on, it becomes clear that M855 does not apply. One of the requirements in the law is that to be "armor-piercing," ammunition has to have been "designed for use in a handgun." While there are some handguns designed to fire M855, M855 itself was never designed for use in a handgun. The ATF were trying to claim that because of the existence of pistol-variant AR's, that that means that the M855 is now pistol ammunition. But it is clearly rifle ammunition and primarily used as such.

Well, you're wrong. Administrative law is chock full of regulations that require legislative intent. When ATF (or any Federal agency) oversteps then congress or the courts will spank them.....as they did with the old "once a rifle, always a rifle".

IMO, you are living in a fantasyland. What makes you think that Congress or the courts will stop the ATF from over-stepping their bounds? The courts in particular refuse to do much of anything about the various states and localities that consistently overstep their bounds. Regarding the Congress, that highly depends on who is in control of the Congress.

And your reference to administrative law doesn't change anything with regards to how the ATF is extremely arbitrary with how they define sporting uses of guns.

The same "us" that wrote the Constitution allows for all those different government agencies to implement regulations based on a Federal law.

There was no "us" in the writing of the Constitution. The Founders wrote it, and then had to convince the American public to support ratification of it. And there is no "us" with regards to allowing all those government agencies. There are so many agencies that most people have no idea that the majority of them even exist. And the idea that they just implement regulations based on federal law I think is wishful thinking. They, to a great degree, make law on their own.

Sorry, wrong again.
A "pro-gun" legislator can't magically make an existing federal law disappear.
And neither can a "pro-gun" judiciary...........they must be able to rule in a court case that the Second Amendment is being infringed. As of today, that hasn't happened with regard to the sporting clause.

I think you misunderstood me as I understand all of that. With regards to pro-gun legislators, I meant such legislators won't use the claim about sporting purposes to write new gun control laws that ban "non-sporting" guns. And regarding the courts, I meant that in court cases, pro-gun courts would reject any law based on "sporting purposes."

Nailed it.
Congress ain't got time to read laws, they leave that for the civil servants and courts to figure out.

Congress is supposed to read the laws they make and try to keep them in line with the Constitution. In the event that they are out of line, then the job of the courts is to put them back in line. Regarding the regulators, basically what you are saying is Congress just creates some "law" and then basically leaves it to the non-elected bureaucrats to make up law as they please in terms of the implementation.

[Bartholomew Roberts]

Originally Posted by dogtown tom

Not really absurd when you read the law ATF was basing that ruling on.

As a lawyer who offered comments on the proposed ban of M855 and has drafted regulatory interpretations of law, I disagree.

As to your other general comments, I think they reflect a naive view of how the system works. Congress, by necessity, delegates a great deal of authority to federal agencies. During the Obama era the issue was that that authority was “reinterpreted” by the agency in a way that gave them more power. Congress was, of course, free to correct that executive reinterpretation with new legislation - provided they could override a Presidential veto. Of course, the GOP could not do that - even with the largest numerical advantage they’ve enjoyed in the last hundred years.

And for the courts to correct that problem you need someone who can bankroll litigation against an opponent that literally picks your own pocket to pay its own lawyers and can afford to use every nasty, expensive, stalling tactic allowed. And then if you manage to overcome that, you need lower court judges who don’t think Scalia is some horrid nightmare and who aren’t deadset on opposing him.

[dogtown tom]

LogicMan

If you read the law they were basing it on, it becomes clear that M855 does not apply. One of the requirements in the law is that to be "armor-piercing," ammunition has to have been "designed for use in a handgun."

First, "designed for use in a handgun" isn't what led ATF to attempt to ban M855, it was the "may be used in a handgun" language in 921a.17.A of what constitutes "armor piercing ammunition" as well as the last paragraph that gives the Attorney general wide latitude in determining "sporting purpose" of ammunition.

Second, It's not arbitrary. Going strictly by the language from the US Code pretty much any jacketed bullet with a core of anything other than lead might be classified as "armor piercing".......and that's the problem. That definition doesn't necessarily mean a bullet is armor piercing.

Third, you assume I agree with ATF....I don't. I'm just showing you the citation from the US Code that ATF was using in their ruling.

U.S.C. 921 a. (17)(A) The term “ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm.

(B) The term “armor piercing ammunition” means—
(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or

(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.


(C) The term “armor piercing ammunition” does not include shotgun shot required by Federal or State environmental or game regulations for hunting purposes, a frangible projectile designed for target shooting, a projectile which the Attorney General finds is primarily intended to be used for sporting purposes, or any other projectile or projectile core which the Attorney General finds is intended to be used for industrial purposes, including a charge used in an oil and gas well perforating device.

While there are some handguns designed to fire M855, M855 itself was never designed for use in a handgun. The ATF were trying to claim that because of the existence of pistol-variant AR's, that that means that the M855 is now pistol ammunition. But it is clearly rifle ammunition and primarily used as such.

Again, the "designed for use in a handgun" isn't what led ATF to attempt to ban M855, it was the "may be used in a handgun" language in 921a.17.A of what constitutes "armor piercing ammunition".

IMO, you are living in a fantasyland. What makes you think that Congress or the courts will stop the ATF from over-stepping their bounds?

Are you kidding? Who do you think caused ATF to put the brakes on with the proposed ban on M855? It was merely an uproar from Congress....and didn't even require a vote.
Ever heard of US vs Thompson Center?
Obviously not.

The courts in particular refuse to do much of anything about the various states and localities that consistently overstep their bounds. Regarding the Congress, that highly depends on who is in control of the Congress.

Horsehockey.
"Control of congress" didn't result in a single anti gun bill during Obama's first two years did it?

And Heller vs DC wasn't about comic books was it?

And your reference to administrative law doesn't change anything with regards to how the ATF is extremely arbitrary with how they define sporting uses of guns.

Either you don't know the definition of "arbitrary" or you don't know what administrative law really is.
ATF is always very careful to cite the relevant citation from Federal law and the CFR when issuing a ruling or determination letter. That doesn't mean they aren't going to be spanked by congress or the courts.

There was no "us" in the writing of the Constitution. The Founders wrote it,

What part of "We the people" do you not get?

And there is no "us" with regards to allowing all those government agencies.

Do you not elect a representative to congress?
Do you not vote?
Oh my.

There are so many agencies that most people have no idea that the majority of them even exist.

Uh, irrelevant.

And the idea that they just implement regulations based on federal law I think is wishful thinking.

It's called the Administrative Procedure Act of 1946.
Read it. It details what authority CONGRESS wanted a Federal agency to have.

They, to a great degree, make law on their own.

That's because Congress gives Federal agencies the authority to promulgate regulations BASED ON the legislation passed by Congress.

ATF cannot "arbitrarily" ban black painted guns for example......they would have to provide a legal reference to an existing Federal law. That's why they told Congress that "bump stocks" aren't machine guns (and why ATF cannot ban them). Once Congress decides to ban bump stocks and passes a new Federal law.....ATF will have to write a regulation the defines the illegal features of a bump stock.

[dogtown tom]

Bartholomew Roberts

As a lawyer who offered comments on the proposed ban of M855 and has drafted regulatory interpretations of law, I disagree.

Disagree? With what?
Are you saying ATF didn't refer to U.S.C. 921 a. (17)(A) when they issued their proposed ban?http://www.atf.gov/sites/default/fil...g_purposes.pdf

As to your other general comments, I think they reflect a naive view of how the system works.

So......tell us how it really works.

Congress, by necessity, delegates a great deal of authority to federal agencies. During the Obama era the issue was that that authority was “reinterpreted” by the agency in a way that gave them more power. Congress was, of course, free to correct that executive reinterpretation with new legislation - provided they could override a Presidential veto. Of course, the GOP could not do that - even with the largest numerical advantage they’ve enjoyed in the last hundred years.

No kidding.

And for the courts to correct that problem you need someone who can bankroll litigation against an opponent that literally picks your own pocket to pay its own lawyers and can afford to use every nasty, expensive, stalling tactic allowed. And then if you manage to overcome that, you need lower court judges who don’t think Scalia is some horrid nightmare and who aren’t deadset on opposing him.

Again, no kidding.

[Bartholomew Roberts]

Disagree? With what?[

I disagree with ATF's interpretation that 18 USC 921(a) gives them the authority to ban M855 ammunition.

You state ATF can't do things arbitrarily, and yet ATF has declared shoestrings to be machineguns, declared arm braces to be OK for pistols, then declared shouldering one made it an SBR, then reversed itself on that as well. ATF has declared bump stocks legal; but the Atkins Accelerator was declared illegal (after it was first declared legal and released to the public.). And now they are taking comments related to regulating bump stocks. No new laws were passed by Congress - all of those decisions were based on the same legal text.

You reference U.S. Vs. Thompson Center; but for almost 20 years the ATF's official position was that the Court's ruling applied only to the specific firearm in that case and not more broadly to pistols that could be converted to rifles.

That's not to say ATF does these things out of malice. They are in the position of having to try and imply the intent of vague law written in 1934 to 21st century firearms sales. Congress isn't in any hurry to clarify any of those delegations of power either. But ATF's interpretations aren't the law - they are just a bunch of government lawyers reaching agreement on how to interpret the law as it applies to modern innovations that didn't even exist when Congress originally delegated them the authority to regulate a different item.

[Aguila Blanca]

Wouldn't life be much simpler if we could get the .gov to just admit that "shal not be infringed" means exactly what it says?

Yes, I know ... "Good luck wit dat."

[dogtown tom]

Bartholomew Roberts

I disagree with ATF's interpretation that 18 USC 921(a) gives them the authority to ban M855 ammunition.

Again, no kidding.
I don't think that anyone involved in the shooting sports agreed with that.

You state ATF can't do things arbitrarily, and yet ATF has declared shoestrings to be machineguns,

And yet that decision was based on what? A long existing Federal regulation. While it seems silly, if it were a wire, cable, a plastic Lego or solid piece of metal it wouldn't have been any different than a shoestring.

And AGAIN, that's not arbitrary, but in fact based on what the regulations define as "machine gun".

No more "arbitrary" than a potato or plastic soda bottle being considered a silencer when used to muffle the report of a firearm.

declared arm braces to be OK for pistols, then declared shouldering one made it an SBR, then reversed itself on that as well.

Wait a minute.
It's still illegal (without a tax stamp) to attach ANYTHING to a pistol with the intent to use it as a shoulder stock.

ATF SHOULD have noted in their original determination letter that using an arm brace as designed and intended (as an arm brace) was perfectly fine. But should have also noted that attaching it to a handgun with the intent to use it as a shoulder stock would have required a tax stamp.

But they didn't and came up with the silly "shouldering" response.

And guess what?..............all those determinations were based on an actual Federal law and existing regulation. Not anything arbitrary.

ATF has declared bump stocks legal; but the Atkins Accelerator was declared illegal (after it was first declared legal and released to the public.).

That may be because Mr Atkins subsequently redesigned his stock AFTER receiving initial approval.

And now they are taking comments related to regulating bump stocks. No new laws were passed by Congress - all of those decisions were based on the same legal text.

And ATF has already been quoted in the press as saying bump stocks are not currently prohibited under any federal law or ATF regulation.

You reference U.S. Vs. Thompson Center; but for almost 20 years the ATF's official position was that the Court's ruling applied only to the specific firearm in that case and not more broadly to pistols that could be converted to rifles.

Yep. And note that the NRA, the Second Amendment Foundation, nitwit GOA and others never pressed the issue. The ATF regulatory change came literally out of the blue.

That's not to say ATF does these things out of malice. They are in the position of having to try and imply the intent of vague law written in 1934 to 21st century firearms sales. Congress isn't in any hurry to clarify any of those delegations of power either. But ATF's interpretations aren't the law - they are just a bunch of government lawyers reaching agreement on how to interpret the law as it applies to modern innovations that didn't even exist when Congress originally delegated them the authority to regulate a different item.

No kidding.

[LogicMan]

First, "designed for use in a handgun" isn't what led ATF to attempt to ban M855, it was the "may be used in a handgun" language in 921a.17.A of what constitutes "armor piercing ammunition" as well as the last paragraph that gives the Attorney general wide latitude in determining "sporting purpose" of ammunition.

1) I know that "designed for use in a hand gun" isn't what led the ATF to attempt a ban, the point is that the fact that M855 wasn't designed for use in a hand gun automatically undermines the ATF's authority to restrict it.

2) There you see an example of the arbitrariness regarding that "sporting purposes" language to ban things. So by having a pro-gun Attorney General, they wouldn't use that to ban anything

3) The "may be used in a handgun" is one part of the definition of armor-piercing, and M855 does not meet the complete definition, so it still fails:

(B) The term ‘armor piercing ammunition’ means—

(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or

(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.

Are you kidding? Who do you think caused ATF to put the brakes on with the proposed ban on M855? It was merely an uproar from Congress....and didn't even require a vote.
Ever heard of US vs Thompson Center?
Obviously not.

An uproar from a predominantly Republican Congress at a time when support for gun rights is fairly strong. As for the courts, again, you are living in a fantasyland, IMO.

Horsehockey.
"Control of congress" didn't result in a single anti gun bill during Obama's first two years did it?

And Heller vs DC wasn't about comic books was it?

It was his first two years. So no, there wasn't a push for an anti-gun bill, because it would have led to a war and possibly destroyed his chances politically to get anything done. Between gun control versus things like universal healthcare, the Democrats wanted to prioritize the latter. As for DC v Heller, that was a skin-of-the-teeth victory, 5-4. And the Supreme Court has as of late been very reluctant to take up any cases regarding gun rights, allowing lower court restrictions on gun rights thus to stand. The lower courts are a mostly lost cause regarding gun rights, especially since Obama as he filled them up with a lot of anti-gun appointees.

Either you don't know the definition of "arbitrary" or you don't know what administrative law really is.
ATF is always very careful to cite the relevant citation from Federal law and the CFR when issuing a ruling or determination letter. That doesn't mean they aren't going to be spanked by congress or the courts.

They cite a very selective interpretation and as you said, the sporting purposes clause in the law gives wide latitude.

What part of "We the people" do you not get?

That is general language to refer to the fact that the Constitution was ratified by the American people to create and give authority to the new federal government. But in terms of who actually wrote the Constitution, it was a select group of men.

Do you not elect a representative to congress?
Do you not vote?
Oh my.

Yes, I do vote, but that doesn't change the fact that all of those government agencies represent a shadow bureaucracy that is completely unelected. In addition, the creation of many of them was done in the past, and once you create a government agency, it is almost impossible to get rid of it. Reagan wanted to get rid of the Department of Education, which had been created by his predecessor, Jimmy Carter, but still couldn't do it. The issue also is more complicated because a lot of government agencies should be there, but it nonetheless creates the problem of a shadow bureaucracy.

Uh, irrelevant.

It is VERY relevant. How can one keep an eye on their government if they don't know certain portions of it even exist?

It's called the Administrative Procedure Act of 1946.
Read it. It details what authority CONGRESS wanted a Federal agency to have.

There are plenty of things regarding what a part of the government is "supposed" to have the authority to do versus what it actually does. The Constitution prohibits the government from doing a lot of things, but that hasn't stopped it over they years from doing them. The 2nd Amendment says the government is not supposed to infringe on the right to keep and bear arms, hasn't stopped it now has it?

That's because Congress gives Federal agencies the authority to promulgate regulations BASED ON the legislation passed by Congress.

ATF cannot "arbitrarily" ban black painted guns for example......they would have to provide a legal reference to an existing Federal law. That's why they told Congress that "bump stocks" aren't machine guns (and why ATF cannot ban them). Once Congress decides to ban bump stocks and passes a new Federal law.....ATF will have to write a regulation the defines the illegal features of a bump stock.

ATF is looking into the banning of them right now. And "promulgate regulations based on legislation" gives a lot of latitude to essentially make law in certain instances. The EPA has been notorious for that as of late.

[Bartholomew Roberts]

dogtown tom, so essentially, your argument is that ATF rulings cannot be considered arbitrary because although they reach conflicting results and change without any change in the underlying law they rely on, they cite to and are based on an interpretation of federal law (though that interpretation may change)? Effectively, they are arbitrary only in outcome but not rationale?

And ATF has already been quoted in the press as saying bump stocks are not currently prohibited under any federal law or ATF regulation.

We’ll see how that statement holds up during the current review.

[44 AMP]

Congress must have the ability to delegate the making and enforcement of regulations to lesser Federal agencies.

Congress has neither the time, nor the "temperament" to manage the tiniest details that govern our lives, NOR DO WE WANT THEM TO!

They do get involved in some things, where they feel a political advantage is to be gained, and their micro-management of certain things seldom leads to optimal results, and often the opposite.

SO, this leaves us with the various agencies to create the regulations that will be used to enforce the laws. The problem with this is, that those agencies are bureaucracies, which, by their very nature will expand to fill the space available, and beyond, unless specifically checked by higher levels of govt. authority.

The second part of the problem is that these agencies are staffed by human beings, a percentage of which are petty, small minded people concerned with nothing beyond their own personal status and power. And when these people become "kings" of their own little world, they strive mightily to expand their kingdoms.

The easiest way for them to do that is to interpret, and re-interpret the regulations to suit their goals. These are your "arbitrary" decisions. Decisions which, unfortunately they have the authority to make, following an established procedure.

They can propose literally anything, and use the most specious logic to connect their proposed change to existing law. IF the proposal manages to "fly under the radar" during the public comment period, it becomes established, and carries the force of law.

Until/unless the agency changes its "mind" at a later date. Look at the history of certain items and the ATF. Pistol stocks (for one example) have been legal, illegal, legal again (with certain restrictions), and I'm not certain what the current interpretation of their legality is.

Watch and see if "bump stocks" don't go the same way, becoming illegal (a regulated item at the least) with the whim of the prevailing political winds.

The ATF was entirely correct to rule they were not a regulated item when the issue came before them. There was (and currently still is) no law covering their ownership and use. I expect that to change, even if there is no change to the governing law(s). A simple "re-interpretation" of the regs could do it, Although, with all the publicity surrounding this particular item, I expect Congress to push for a change in the law, to ensure easy acceptance of the reinterpreted regulations.

If you are looking for a root cause for our current situation, you might look back a ways to where Congress screwed us, and themselves, by giving the regulations the force of law. Prior to that violating a regulation and violating the law were separate things, and it was up to the courts to determine if the law was actually violated when a given regulation was.

I do not believe that is the situation that obtains today. And we are worse off, because of it.

[langenc]

from post #13-Logical man
Quote:
ATF has published it's views on 3 gun, etc...........basically saying that although those are now considered "sports", they were not around when Congress passed the GCA. (and therefore do not count)
Sounds pretty arbitrary to me. Just because something wasn't around at the time the law was passed doesn't mean they can't count as a sport.

TV, radio, INTERNET for sure were not around when the Constitution was signed. Try and eliminate the 1A protection from them and see how Nancy, Chuckie, Mitch and Diane respond.

They wont ever give you the time of day.

[LogicMan]

If you are looking for a root cause for our current situation, you might look back a ways to where Congress screwed us, and themselves, by giving the regulations the force of law. Prior to that violating a regulation and violating the law were separate things, and it was up to the courts to determine if the law was actually violated when a given regulation was.

I do not believe that is the situation that obtains today. And we are worse off, because of it.

When did Congress change it to where regulations have the force of law? Also, wouldn't we want certain regulations to have the force of law so as to make sure that companies maintain compliance with worker safety standards, food safety standards, etc...?

[dogtown tom]

LogicMan

1) I know that "designed for use in a hand gun" isn't what led the ATF to attempt a ban, the point is that the fact that M855 wasn't designed for use in a hand gun automatically undermines the ATF's authority to restrict it.

Wrong.

2) There you see an example of the arbitrariness regarding that "sporting purposes" language to ban things. So by having a pro-gun Attorney General, they wouldn't use that to ban anything

FYI, the Attorney General isn't the ATF.

3) The "may be used in a handgun" is one part of the definition of armor-piercing, and M855 does not meet the complete definition, so it still fails:

Wrong.
To meet the definition it can match either paragraph...that's what "or" allows.

(B) The term ‘armor piercing ammunition’ means—

(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or

(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.

Take five minutes and read the link I posted above to ATF reasoning regarding M855.

An uproar from a predominantly Republican Congress at a time when support for gun rights is fairly strong. As for the courts, again, you are living in a fantasyland, IMO.

Well, thanks for agreeing with me. You wrote "What makes you think that Congress or the courts will stop the ATF from over-stepping their bounds? "
I pointed out instances of both.....that were REALITY. I'm not the one ignoring reality here.

They cite a very selective interpretation and as you said, the sporting purposes clause in the law gives wide latitude.

So....you agree they are basing their rulings on existing regulations? (whether flawed or not)
Then what is your problem?

Yes, I do vote, but that doesn't change the fact that all of those government agencies represent a shadow bureaucracy that is completely unelected.

Well no kidding.
I have news for you, the US military isn't elected, neither are mailmen, school teachers and the guys that pick up your garbage.

As far as "shadow bureaucracy"?.......stop listening to Alex Jones.

In addition, the creation of many of them was done in the past, and once you create a government agency, it is almost impossible to get rid of it. Reagan wanted to get rid of the Department of Education, which had been created by his predecessor, Jimmy Carter, but still couldn't do it. The issue also is more complicated because a lot of government agencies should be there, but it nonetheless creates the problem of a shadow bureaucracy.

What gets said on the campaign trail is for getting votes. Once in office, politicians see things differently.

There are plenty of things regarding what a part of the government is "supposed" to have the authority to do versus what it actually does. The Constitution prohibits the government from doing a lot of things, but that hasn't stopped it over they years from doing them. The 2nd Amendment says the government is not supposed to infringe on the right to keep and bear arms, hasn't stopped it now has it?

Maybe you should be arguing with the Supreme Court.

ATF is looking into the banning of them right now.

No, it's a request for comment.
They are complying with the wishes of Congress and the Attorney General. In order to ban bump stocks there would need to be a change to existing federal law.

And "promulgate regulations based on legislation" gives a lot of latitude to essentially make law in certain instances. The EPA has been notorious for that as of late.

They only have as much latitude to promulgate regulations as the enabling law allows.

[dogtown tom]

Bartholomew Roberts dogtown tom, so essentially, your argument is that ATF rulings cannot be considered arbitrary because although they reach conflicting results and change without any change in the underlying law they rely on, they cite to and are based on an interpretation of federal law (though that interpretation may change)?

It's not just ATF, but regulatory rulings by any Federal agency.
If deemed "arbitrary" by the courts then they are invalid.

Effectively, they are arbitrary only in outcome but not rationale?

I think you would agree that when ATF issues a ruling that we agree with we don't consider it arbitrary.....such as the removal of the CLEO signoff for NFA transfers. Yet when it's a ruling we disagree with it suddenly becomes arbitrary?

Any Federal agency that issues rulings on existing Federal law and regulations damned well better have solid footing on which to make that ruling. If they don't heads should roll.

We’ll see how that statement holds up during the current review.

The current review won't be any different than the last....using current regulations.
What is yet to be determined is what NEW definition of machine gun will ATF try and implement. But we don't need to worry, after all Trump is pro Second Amendment.

[dogtown tom]

44 AMP Congress must have the ability to delegate the making and enforcement of regulations to lesser Federal agencies.

Congress has neither the time, nor the "temperament" to manage the tiniest details that govern our lives, NOR DO WE WANT THEM TO!

They do get involved in some things, where they feel a political advantage is to be gained, and their micro-management of certain things seldom leads to optimal results, and often the opposite.

SO, this leaves us with the various agencies to create the regulations that will be used to enforce the laws. The problem with this is, that those agencies are bureaucracies, which, by their very nature will expand to fill the space available, and beyond, unless specifically checked by higher levels of govt. authority.

Well said.

The second part of the problem is that these agencies are staffed by human beings, a percentage of which are petty, small minded people concerned with nothing beyond their own personal status and power. And when these people become "kings" of their own little world, they strive mightily to expand their kingdoms.

Yet no matter how petty or small minded they must still abide by the underlying law. The only ones with real status and power would be the political appointees.....not typically the civil service level staff. No staff level determination sees the light of day before approval by a political appointee.

The easiest way for them to do that is to interpret, and re-interpret the regulations to suit their goals. These are your "arbitrary" decisions. Decisions which, unfortunately they have the authority to make, following an established procedure.

If the interpretation is based on existing Federal law and supported by the relevant citations it is by definition not arbitrary is it?

"arbitrary describes a course of action or a decision that is not based on reason or judgment but on personal will or discretion without regard to rules or standards."

Maybe you are using a different definition?

They can propose literally anything, and use the most specious logic to connect their proposed change to existing law. IF the proposal manages to "fly under the radar" during the public comment period, it becomes established, and carries the force of law.

While that may be true, this is why we have a system of checks and balances.

Until/unless the agency changes its "mind" at a later date. Look at the history of certain items and the ATF. Pistol stocks (for one example) have been legal, illegal, legal again (with certain restrictions), and I'm not certain what the current interpretation of their legality is.

Well, no.
How can you make an argument with such a terrible understanding of Federal law? "Pistol stocks" with a few narrow exceptions have required a Federal tax stamp since 1934. Using a shoulder stock on a pistol would require a tax stamp before attachment.

If you are referring to "arm braces" attached to a handgun, then you should understand that ATF has NEVER deemed them illegal when used as an arm brace in the manner as described in their determination letter. NEVER has ATF exempted them from the NFA as a shoulder stock.

ATF foolishly didn't make it clear in their original determination letter that attaching anything to a handgun with the intent to use it as a shoulder stock REMAINS illegal unless you possess a an SBR tax stamp. Their subsequent "correction" letter implied that "shouldering" an arm brace was illegal.....until they reversed themselves. The NFA law remains the same....attach something to a handgun with the intent to use it as a shoulder stock requires a tax stamp.

Watch and see if "bump stocks" don't go the same way, becoming illegal (a regulated item at the least) with the whim of the prevailing political winds.

And that would require the current definition of "machine gun" in Federal law to change.

The ATF was entirely correct to rule they were not a regulated item when the issue came before them. There was (and currently still is) no law covering their ownership and use. I expect that to change, even if there is no change to the governing law(s). A simple "re-interpretation" of the regs could do it, Although, with all the publicity surrounding this particular item, I expect Congress to push for a change in the law, to ensure easy acceptance of the reinterpreted regulations.

Sooo...........ATF was arbitrary AND correct?

If you are looking for a root cause for our current situation, you might look back a ways to where Congress screwed us, and themselves, by giving the regulations the force of law. Prior to that violating a regulation and violating the law were separate things, and it was up to the courts to determine if the law was actually violated when a given regulation was.

True.

[zukiphile]

I think you would agree that when ATF issues a ruling that we agree with we don't consider it arbitrary.....such as the removal of the CLEO signoff for NFA transfers. Yet when it's a ruling we disagree with it suddenly becomes arbitrary?

Any Federal agency that issues rulings on existing Federal law and regulations damned well better have solid footing on which to make that ruling. If they don't heads should roll.

That's not how our system works. Agency action and regulation can exceed or contradict the legislation on which it is purportedly based and have the effect of law until substantial resources are devoted to reversing the error. that leaves ample room for abuse. 44 AMP's explanation of the dangers of regulatory growth aren't easily dismissed by people who soberly consider the effects on limited government.

The implication that all objection to agency rulings is unprincipled becomes some rulings are reasonably related to legitimate agency goals doesn't bear a lot of scrutiny.

[dogtown tom]

zukiphile

That's not how our system works. Agency action and regulation can exceed or contradict the legislation on which it is purportedly based and have the effect of law until substantial resources are devoted to reversing the error.

It's EXACTLY how our system works.......regulations that contradict the actual Federal law are subject to scrutiny and review by Congress and the Courts....it happens every day.

that leaves ample room for abuse.

Yes it does.

44 AMP's explanation of the dangers of regulatory growth aren't easily dismissed by people who soberly consider the effects on limited government.

No argument there.

The implication that all objection to agency rulings is unprincipled becomes some rulings are reasonably related to legitimate agency goals doesn't bear a lot of scrutiny.

Huh? Who said anything of the sort?
Not me or anyone else in this thread.

[zukiphile]

Originally Posted by dogtown tom

Any Federal agency that issues rulings on existing Federal law and regulations damned well better have solid footing on which to make that ruling. If they don't heads should roll.

It's EXACTLY how our system works.......regulations that contradict the actual Federal law are subject to scrutiny and review by Congress and the Courts....it happens every day.

Emphasis added.

That's very far from heads rolling, as the explanation of the mere potential of expensive and sanctionless judicial correction should indicate to you.

Originally Posted by dogtown tom

Yet when it's a ruling we disagree with it suddenly becomes arbitrary?

Originally Posted by dogtown tom

Huh? Who said anything of the sort?
Not me or anyone else in this thread.

Emphasis added. Implication - the conclusion that can be drawn from something, although it is not explicitly stated.

As for the other term that is your recurring obstacle - arbitrary - "(of power or a ruling body) unrestrained and autocratic in the use of authority.
"arbitrary rule by King and bishops has been made impossible"
synonyms: autocratic, dictatorial, autarchic, undemocratic, despotic, tyrannical, authoritarian, high-handed; ..."

https://www.google.com/search?ei=JJx....0.nRXwl3A98Bo

Both parts are important elements of 44AMP's point.

[44 AMP]

Yet no matter how petty or small minded they must still abide by the underlying law. The only ones with real status and power would be the political appointees.....not typically the civil service level staff. No staff level determination sees the light of day before approval by a political appointee.

This is a "yes and no" kind of thing. Yes, the kingdom makers must abide by underlying law, when they are caught at it.

The "real status and power" of the political appointees is both real, and unreal. Its recognized by the "political" people, but to the career service worker, it is a transitory thing. That political appointee, no matter how much power he/she wields, is a temporary thing in the eyes of long time service workers. The politically appointed boss WILL be replaced at the whim of the administration. If not the current one, then the next. And the long service workers know this.

And yes, nothing produced by those "in the trenches" goes public until after the political boss approves it, but without the work of those in the trenches there would be nothing to go public with.

That politically appointed boss directs the focus of the effort, but doesn't do the work himself.

How can you make an argument with such a terrible understanding of Federal law? "Pistol stocks" with a few narrow exceptions have required a Federal tax stamp since 1934. Using a shoulder stock on a pistol would require a tax stamp before attachment.

If you are referring to "arm braces" attached to a handgun,

Perhaps I should have been more clear. I'm not referring to arm braces, I'm talking about actual stocks, such as those for Lugers, Mausers, and some Hi Powers.

Many Lugers and other guns had their stock attachment lugs ground off, so that the owner could have both the gun, and the stock and not run afoul of Federal law, without the tax stamp.

Then these guns were classified Curio & Relic and you could have a stock that would attach to the gun, without a stamp.

Then later, the ATF changed their mind, so only "original" stocks were legal without a tax stamp. Reproduction stocks, identical in every way to the original (including lack of dates and serial #) were only legal to put on the pistol with a tax stamp.

TO some people these changes are "refining the regulations" to others they are arbitrary decisions.

Whether or not something is an arbitrary decision gets even murkier when the language used in the law is written too broadly.

When the law used for the basis of the decision says things like "any part or combination of parts, designed or intended to..."

That allows for the idiocy of regulating a single part as if it were an actual complete firearm. technically legal but it makes no sense. You can't shoot someone with an M16 auto sear alone, but you can get the same prison time for having one, as you would for having a fully functional non registered machine gun.

Something like that takes the idea of constructive possession a bit too far, I think.

[Bartholomew Roberts]

Originally Posted by dogtown tom

It's not just ATF, but regulatory rulings by any Federal agency. If deemed "arbitrary" by the courts then they are invalid.

I’ve written about 600 equivalents of “private letter rulings.” About six of those have gone to litigation and all six are still unresolved even at the lowest district court level and although I no longer work there.

All six of the lawsuits challenging those decisions were brought by corporations or municipal organizations with considerable resources and none of them are even near a trial date.

Your average joe stands little chance of getting justice vs. ATF through the court system.

[LogicMan]

FYI, the Attorney General isn't the ATF.

I know that, but I was pointing out the issue of having pro-gun people in the government bureaucracies with regards to the "sporting purposes" clause.

Wrong.
To meet the definition it can match either paragraph...that's what "or" allows.

Quote:
(B) The term ‘armor piercing ammunition’ means—

(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or

(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.

Take five minutes and read the link I posted above to ATF reasoning regarding M855.

I did, and it still fails both definitions.

1) The first definition is that it can be used in a handgun and is constructed from one or a combination of a list of materials. But M855 is constructed from steel and lead. Steel is a mentioned material, but M855 is not constructed primarily of steel, it is a combination of steel and lead, and lead is not a mentioned material.

2) The second definition says it must be intended for use in a handgun, which it isn't. So it fails that definition as well.

Well, thanks for agreeing with me. You wrote "What makes you think that Congress or the courts will stop the ATF from over-stepping their bounds? "
I pointed out instances of both.....that were REALITY. I'm not the one ignoring reality here.

You are assuming that Congress and/or the courts will stop the ATF from over-stepping their bounds. While that happened with Congress recently, that does not mean that it will happen in the future. And regarding the courts, they are pretty anti-gun as they have shown late.

So....you agree they are basing their rulings on existing regulations? (whether flawed or not)
Then what is your problem?

My problem is as I originally said, their arbitrariness.

Well no kidding.
I have news for you, the US military isn't elected, neither are mailmen, school teachers and the guys that pick up your garbage.

As far as "shadow bureaucracy"?.......stop listening to Alex Jones.

I don't listen to Alex Jones. And when I say "shadow bureaucracy," I'm not talking conspiracy theory, I mean exactly as the term describes, i.e. a bureaucracy that exists mostly in the shadows. And when you look at the recent high-level corruption in the FBI, IRS, NSA, Secret Service, etc...along with controversial power grabs by the likes of the EPA, concern about the shadow bureaucracy is very legitimate. The major point is that the people have no way to really hold this shadow bureaucracy accountable, and thus to claim that "the people" are the ones who ultimately voted for a lot of these regulations is over-simplifying the issue big-time.

What gets said on the campaign trail is for getting votes. Once in office, politicians see things differently.

Usually they do, but I don't think Reagan was lying there, it's just that he ran up against the political roadblocks to getting rid of an established bureaucracy.

Maybe you should be arguing with the Supreme Court.

Maybe

No, it's a request for comment.
They are complying with the wishes of Congress and the Attorney General. In order to ban bump stocks there would need to be a change to existing federal law.

Hopefully, but IMO a "request for comment" means they are looking into it.

They only have as much latitude to promulgate regulations as the enabling law allows.

Yes, but the law can give a wide latitude.

[dogtown tom]

LogicMan

I know that, but I was pointing out the issue of having pro-gun people in the government bureaucracies with regards to the "sporting purposes" clause.

You can have 100% pro-gun people working for ATF and one stroke of the pen from the Attorney General kills that idea doesn't it?

I did, and it still fails both definitions.

Well, no you didn't and no, it doesn't.
First, you didn't read the link that explains ATF's reasoning behind their proposed ban on M855.

Second, you didn't read or didn't understand the first paragraph of the definition: "...(B) The term ‘armor piercing ammunition’ means—(i) a projectile or projectile core which may be used in a handgun..."

1) The first definition is that it can be used in a handgun and is constructed from one or a combination of a list of materials. But M855 is constructed from steel and lead. Steel is a mentioned material, but M855 is not constructed primarily of steel, it is a combination of steel and lead, and lead is not a mentioned material.

What you are missing is that M855 has a steel "projectile core".....and that's why it met the definition of armor piercing in 1986. Note that in 1986 ATF specifically exempted M855 and in 1992 .30-06 M2AP because of their sporting use and the fact that there were few if any handguns using that ammunition.

2) The second definition says it must be intended for use in a handgun, which it isn't. So it fails that definition as well.

I've never said that definition applied.....it doesn't need to.