This article was published by The McAlvany Intelligence Advisor on Wednesday, March 27, 2019:
Ryan Liskey has a problem. A law-abiding citizen and gun owner living in Virginia, he happens to own a bump stock. On Monday it was legal for him to do so. On Tuesday possession became illegal. Liskey raised the key question:
Do they [the ATF] have authority to do this? No. Is it a machine gun? No.
If Liskey “stands his ground” and is arrested for owning the newly illegal piece of plastic, and convicted, he becomes a felon, risking huge fines and up to 10 years in federal prison.
All without Congressional assent, thanks to the burgeoning administrative state exemplified by the ATF.
But just how is that arrest going to take place if Liskey fails to comply with the new administrative edict emanating from the ATF? When Justice Department officials were asked that very question last year when the ban was being announced (albeit with the 90-day waiting period which ended on Tuesday), they waffled:
We have no plans to go door to door, nor do we have the resources. The Department of Justice primarily relies on voluntary compliance by citizens. Most firearms owners are law-abiding citizens.
Numerous lawsuits against the administrative ruling have been filed, and all but one has been tossed. The single exception affects a single individual, Clark Aposhian, who had the help of the New Civil Liberties Alliance (NCLA), Aposhian obtained a temporary stay of the new administrative decree. It only protects him but it opens the door for the decree’s eventual reversal.
Said NCLA’s lead counsel, “Today [March 22] the [U.S. 10th Circuit] Court of appeals told the ATF that it could not rush through the bump stock ban without meaningful judicial review. The court understands the stakes and is refusing to let an innocent owner be declared a felon, as scheduled [on March 26].”
What’s at stake is the very functioning of the federal government under the Constitution. The NCLA makes that clear from its mission statement:
The New Civil Liberties Alliance is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to defend constitutional freedoms – primarily against the Administrative State….
NCLA views the Administrative State as an especially serious threat to constitutional freedoms. No other development in contemporary American law denies more rights to more Americans.
Although Americans still enjoy the shell of their Republic, there has developed within it a very different sort of government – a type, in fact, that the Constitution was designed to prevent. This unconstitutional administrative state is the focus of NCLA’s concerns.
In the instant case, the ACLA contends that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its authority by arbitrarily and capriciously rewriting a Congressional rule regarding bump stocks, which it called merely an “amendment” to that rule, thus avoiding the need to obtain Congressional approval.
The rewrite went against the ATF’s previous rulings dating back to 2010 declaring that bump stocks did not turn the semi-automatic rifles to which they were attached into machine guns, therefore falling under federal prohibitions.
But following Stephen Paddock’s use of bump stocks in October 2017’s Las Vegas massacre, they became anathema to the anti-gun crowd as well as President Trump. He ordered the ATF to rewrite the rule in order to ban them, and the agency dutifully complied.
What matters is not that the ruling only affects some 500,000 gun owners possessing the now-illegal piece of plastic that all-of-a-sudden turns an ordinary semi-automatic AR-15 into a banned machine gun. What matters is the dangerous precedent set by an administrative agency reaching beyond its congressional mandate to make such a determination.
If the ATF can arbitrarily declare that bump stocks turn semi-automatic weapons into “machine guns” and therefore fall under NFA (National Firearms Act of 1934) and GCA (Gun Control Act of 1968) prohibitions, then what’s to keep them from finding some way to turn semi-automatic rifles and pistols into illegal firearms under those laws as well?
That’s the whole point of the single lawsuit where the judge ruled against the ban.
This is precisely the point made by Tim Harmsen, a gun owner and one of the plaintiffs in another suit, brought by Gun Owners of America (GOA): “This issue for me is government overreach. The executive branch just said, ‘Hey, we want you, basically ATF, an agency, to rewrite, reinterpret federal law so we can get the outcome we want.’”
That point was reiterated by GOA’s legislative counsel, Michael Hammond: “It’s saying that a piece of plastic is a ‘machine gun.’ I think the court needs to take into consideration that if a piece of plastic is a machine gun, [then] the AR-15 is also a machine gun.”
That would turn the issue from one affecting only about 500,000 gun owners who possess the now-illegal “piece of plastic” into one affecting 100 million gun owners.
Erich Pratt, GOA’s executive director, called the move “dangerous”:
We think it’s really dangerous for a regulatory agency to be able to just turn on a dime. For 10 years they said that bump stocks fit within the law, [that] they were perfectly legal. And then they reversed themselves and said, ‘Oh, this piece of plastic is a machine gun.’
If they can do that and wave their magic wand, they can say anything is a machine gun.
What’s ultimately at risk here is the loss of respect for the rule of law, and the decision of the ATF to attempt to enforce the ban through force or threat of force. That would, in the opinion of many, trigger a civil war that would be ugly to contemplate.
As this writer gratefully acknowledged last week in this space, New Zealand is not the United States, and U.S. gun owners will not all gracefully roll over for the ATF’s latest intrusion into precious rights. If enough of them fail to comply with the ATF’s new rule, that compliance becomes de facto nullification.
GunsintheNews.com: US 10TH CIRCUIT COURT ISSUES STAY ON FEDERAL BUMP STOCK BAN FOR UTAH MAN
The McAlvany Intelligence Advisor: New Zealand is not the United States