NCLA Asks Full Fifth Circuit to Toss ATF’s Bump Stock Ban and Reject Deference to the Government

Washington, DC (July 25, 2022) – Today, the New Civil Liberties Alliance filed its appellant brief in the U.S. Court of Appeals for the Fifth Circuit in Michael Cargill v. Merrick B. Garland, et al. This lawsuit could determine who has the constitutional authority to change the criminal law if changes are warranted. The appeals court in June vacated the three-judge panel’s opinion upholding ATF’s legal interpretation and granted en banc review—that is, review by all 17 active judges on the court. Adoption of the rarely used en banc procedure is a sign that the appeals court views the issues in this case as highly important. The Fifth Circuit will be the third U.S. Court of Appeals to hear this issue en banc, but it could be the first to reach the merits. The Tenth Circuit dismissed the en banc over five dissents, and the Sixth Circuit split 8-8 on the questions at stake.

NCLA is seeking invalidation of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) Bump Stock Final Rule, in which the agency declared that non-mechanical bump stocks are “machineguns” within the meaning of the relevant statute. Because the Final Rule is not a valid legislative rule, ATF may not seek judicial deference to its statutory interpretation. Moreover, the agency expressly waived any deference claim for the Bump Stock Rule under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

Plaintiff Michael Cargill alleges that: (1) the Final Rule conflicts with the statutory definition of a machinegun and thus exceeds ATF’s authority; (2) ATF’s construction is not entitled to Chevron deference; (3) to the extent that the courts determine that the definition of machinegun is ambiguous with respect to bump stocks, they should apply the rule of lenity to determine that bump stocks are not machineguns; and (4) if the statute were interpreted as authorizing ATF’s declaration that bump stocks are prohibited machineguns, then it would be an unconstitutional delegation of Congress’s legislative powers.

The district court’s erroneous construction of the statute has been rejected by a significant majority of federal appellate judges outside the Fifth Circuit who have considered the same question. The best reading of the statute is, in fact, the one espoused by ATF before December 2018: non-mechanical bump stocks are not “machineguns.” A separate NCLA lawsuit, Aposhian v. Garland, also challenges the Final Rule. That suit is pending in the U.S. Supreme Court on a petition for a writ of certiorari.

The current statute, adopted in 1986, prohibits “machineguns” in a manner that does not include non-mechanical bump stocks. The evidence at trial demonstrated conclusively that a semi-automatic rifle equipped with a non-mechanical bump stock is not a weapon that “shoots, is designed to shoot, or can readily be restored to shoot, automatically more than one shot … by a single function of the trigger.” It is impossible to square the Final Rule’s conclusion that bump stocks are machineguns with the uncontested evidence that every shot fired by a bump-stock-equipped semi-automatic rifle requires a separate “function” of the trigger. Furthermore, it is unlawful for a prosecutorial entity like ATF to rewrite existing law. Congress itself must initiate any change in gun control laws. The Court should enjoin ATF’s brazen effort to enact a new criminal law on its own.

NCLA released the following statements:

“Two appeals courts—the D.C. and Tenth Circuits—have upheld the Final Rule. But they did so only after placing a thumb on the scale by deferring to the Government’s interpretation of the ‘machinegun’ statute. Any court that conducts a truly independent analysis of the statute will quickly discern that bump stocks do not fit within the statutory definition of a machinegun.”
— Rich Samp, Senior Litigation Counsel, NCLA

“Like a majority of federal appeals judges who have weighed in on the merits, NCLA believes the federal statute banning machine guns does not encompass bump stocks. But if there is any ambiguity in the statute, then the rule of lenity still dictates construing the statute in Mr. Cargill’s favor to exclude bump stocks. Under no circumstance may ATF rewrite the statute to create new criminal liability for bump stock owners.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here and the case video here.

Download the full document

Thoughts on the Swamp.

Where’s Cato the Elder when you need him?

Around 150 B.C., the grumpy Roman senator took to ending every speech, no matter what the topic (grain allotments for the plebs, plans for a new aqueduct, whatever) with the injunction “Ceterum autem censeo Carthaginem esse delendam”: “And another thing, I think that Carthage ought to be destroyed.”

That refrain has come down to us as a lapidary, three-word imperative: “Carthago delenda est”: “Carthage must be destroyed.”

Daniel Hannan, the British commentator, euroskeptic, and sometime member of the European Parliament, took a page from Cato’s book and for a time ended all his speeches with the formula, “Pactio Olisipiensis censenda est”: “The Lisbon treaty must be put to the vote.”

There’s something to be said for repetition.

In 146 B.C., Rome besieged and then sacked Carthage. According to some accounts, the only thing left standing was a funerary monument. The European Union is still moldering along, but at least the proximate goal of Hannan’s campaign, Britain’s exit from that soul-sucking leviathan, has been accomplished.

With those victories in mind, I’m thinking of concluding all my speeches with the phrase “Palus delenda est”: “The swamp must be destroyed.”

What’s the swamp? The word has a long history, aided by the serendipitous contingency that Washington was actually built on a literal swamp. But the term, like a Chinese virus, underwent a “gain-of-function” makeover in 2015 when Donald Trump first strode onto the center stage of American political life.

“The swamp”: That is the bureaucratic Washington establishment, the alphabet soup of agencies whose personnel, though unelected and largely unaccountable, run our lives right down to the latest permit, regulation, tax, fee, impost, and woke government requirement or interdiction.

But it’s also something more. “The swamp” names an attitude, an assumption, about power, about politics, but also about certain basic human realities. Above all, perhaps, “the swamp” rests and feeds upon the progressive assumption that the mass of citizens is incapable of self-government.

I call that assumption “progressive” because from the time of Woodrow Wilson on down to the latest Davos mandarin, the neo-feudal bifurcation of humanity into elect and (ever the majority) subservient has been the guiding, if unspoken, nutrient.

The litany of Trump’s policy achievements is long and distinguished. It begins with his judicial appointments, some fruits of which we saw last month with the Supreme Court decisions on Roe v. Wade, the Environmental Protection Agency, and the Second Amendment, and includes his attention to our southern border, energy, taxes, the Middle East, and a host of other issues.

But more than any particular achievement, Trump was the tocsin that awakened millions of people—those whom Hillary Clinton dismissed as “deplorables”—to the two-tier reality of political life in the United States.

In “Nicomachean Ethics,” Aristotle wrote that “the good life of man” was the “end of the science of politics.” Trump showed us how fond that idea had become. In brief, Trump was the agent of a mass consciousness raising.

It was that spectacle, the prospect of the people suddenly awakened to the reality not only of their bondage, but also to the identity of their putative masters that stood behind the astonishing hatred Trump aroused among the self-appointed elect.

The frenzied machinations of the Jan. 6 committee to destroy anyone and anything touched by the populist spirit Trump aroused show how desperate our rulers and their scribes and Pharisees have become.

They’re terrified lest Trump return to complete the task of (in Steve Bannon’s memorable phrase) “deconstructing the administrative state,” which the former president began in 2016. Trump might not be the person capable of carrying that standard, but he is, despite all his quirks and crotchets, likely to be the most effective.

The fury unleashed against him will probably never end, though the midterm elections will probably deprive the rancid anti-Trump mafia of much of their armament.

The point is that the genie that Trump released won’t be coaxed back into the bottle. Expect the anti-Trump furor to continue and grow in volume and vituperativeness. Expect the population of the Washington gulag to swell with people indicted for “parading” in or around the Capitol. Expect more dawn raids and unannounced arrests of former Trump associates. We might even see the Jan. 6 committee making a criminal referral to the “Department of Injustice.”

The silver lining is that the more hysterical that agents of the regime become, the more stalwart will be the response of the newly awakened populace. A reckoning, that is to say, is coming. It can’t come too soon.

In the meantime, join me in chanting “Palus delenda est.”

Data sharing part of a big globalist plan to control and disarm?

I often find myself telling level headed people in conversation that I don’t wear a tin foil hat, but I do keep a roll of aluminum foil nearby just in case. A recent press release from the Department of Justice has my skin crawling with the underpinnings of the Ministry of Truth and an ubermensch version of “Big Brother”. Call me a Chicken Little if you must, but what I read was an announcement that reeks with gobilist progressive measures to expand control. The DOJ so neatly delivered a “Joint Statement by the United States and the United Kingdom on Data Access Agreement.”

The United States and United Kingdom intend to bring into force the Agreement between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland on Access to Electronic Data for the Purpose of Countering Serious Crime (“Data Access Agreement”), which was signed in 2019, on Oct. 3, 2022. The entry into force of the Data Access Agreement will start a new era of co-operation between the United States and the United Kingdom, bringing forward a renewed commitment to tackling the threat of serious crime.

The Data Access Agreement will be the first agreement of its kind, allowing each country’s investigators to gain better access to vital data to combat serious crime in a way that is consistent with our shared values and mission of protecting our citizens and safeguarding our national security.

What’s equally troubling is that the agreement going into force this upcoming October is that it was signed in 2019 by then Attorney General William Barr. Maybe when this was executed while the United States had a different President and England a different Prime Minister (not that Barr is on a list of people I’d like to have dinner with), such an agreement would not seem that bad. However, this conduit will be opened up between two governments, which don’t necessarily seem to have the best interests in mind for their respective citizens at the current time.

What is it that they say the road to Hell is paved on?

Digging deeper into what the inception of this agreement was (a product of the CLOUD Act Agreement), we need to turn to letters that were sent between William Barr and Priti Patel MP, Secretary of State for the Home Department for the Government of the United Kingdom of Great Britain and Northern Ireland. These clips might open the door a little on the topic, however reading them in full at the source paints a clearer picture.

Patel to Barr:

The United Kingdom declares that its essential interests under the Agreement may be implicated by the introduction of data received pursuant to Legal Process recognised by the Agreement as evidence in the prosecution’s case in the United States for an offence for which the death penalty is sought. Accordingly, in the event that authorities in the United States receive such data and intend to introduce such data as evidence in the prosecution’s case for an offence for which the death penalty is sought, the Designated Authority of the United States is required to obtain permission from the Designated Authority of the United Kingdom prior to any use of the data in a manner that is or could be contrary to those essential interests, as described in Article 8(4).

Barr to Patel:

In addition, the United States commits to inform the United Kingdom if the Department of Defense intends to use data known by relevant Department personnel to have been obtained pursuant to Legal Process recognized by the Agreement as evidence in the prosecution’s case in military commission proceedings at Guantanamo, as information to be used against a detainee in reviews of such detention at Guantanamo, as evidence in support of the United States’ case in any legal proceedings challenging the Department’s authority to detain a current or nominated Guantanamo detainee, or as intelligence in support of military detention operations where the target of the operations has been nominated for, or designated for, detention at Guantanamo.

Apparently, the United Kingdom is not the only country that we’re planning on sharing information with. In the Federal Register, there’s a notice of a similar arrangement with Australia, also from the formerly mentioned CLOUD Act Agreement.

In accordance with the Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”) relating to an executive agreement governing access by a foreign government to electronic data, notice is given that on December 15, 2021, the Attorney General certified his determination that the laws of the Government of Australia and the Agreement between the Government of the United States of America (“U.S.” or the “United States”) and the Government of Australia on Access to Electronic Data for the Purpose of Countering Serious Crime (the “U.S.-Australia CLOUD Agreement” or “Agreement”) satisfy the requirements of the CLOUD Act. On December 22, 2021, the Attorney General submitted a written certification of his determination to Congress.

These agreements have all been circulating quietly in the background. I don’t hear MSM talking about any of them, and I do keep my finger on the news pulse.

Outside of the little correspondence we could read between Barr and Patel and that it’s a product of the CLOUD Act, the big “why” is not abundantly clear. It’s the language in the July 21st release that’s really troubling though, regardless of the modifiers “ensuring” that our protections are not compromised.

The Data Access Agreement will allow information and evidence that is held by service providers within each of our nations [emphasis added] and relates to the prevention, detection, investigation or prosecution of serious crime to be accessed more quickly than ever before. This will help, for example, our law enforcement agencies gain more effective access to the evidence they need to bring offenders to justice, including terrorists and child abuse offenders, thereby preventing further victimization.

Our Agreement will maintain the strong oversight and protections that our citizens enjoy and does not compromise or erode the human rights and freedoms that our nations cherish and share. It protects our citizens by improving both nations’ ability to fight serious crime while maintaining the democratic and civil liberties standards that we stand for and promote around the world.

Just so we’re all on the same page about who or what a “provider” is, from the agreement’s definitions page:

Covered Provider means any private· entity to the extent that it:

(i) provides to the public the ability to communicate, or to process or store computer data, by means of a Computer System or a telecommunications system; or

(ii) processes or stores Covered Data on behalf of an entity defined in subsection (i).

On the surface, many would say such agreements just make sense, as they’ll lead to the ease of procuring important evidence in high profile cases. The data can be used to stop, intercept, and prosecute sex/human trafficing, amongst other crimes.

Consider me a cynic though. Any room for abuse, in my opinion, something like this would be abused. If the last administration paved the way for this under good intentions, I can see the current one using it for bad. We’re told that under the Trump administration Barr was trying to make it easier to get data on detainees in Gitmo and or information concerning capital crimes. Those cases do sound juicy.

Given our geo-political makeup, an agreement like this should cause some alarm. We know that the UN seeks the registration of all privately held arms in the world through their so-called small arms treaty. Given historical context, we also know that registration of arms leads to confiscation, leaving people subjects rather than citizens to their governments. Who’s to say that such an agreement can’t lead to the dissemination of information about arms in the United States?

Data sharing like that of this agreement and of the CLOUD Act could be an existential threat to the Republic. We must keep in mind that what’s considered “human rights and freedoms” to England and by extension Australia, is very different from that of the United States. Remembering that it was the tyranny of England we fought to gain our own independence from, and England has a disarmament mentality to date. Australia fought no such war, and still bends a knee to the crown. We don’t see eye to eye on what all liberties are.

When the rubber meets the road, I don’t exactly trust our data in the hands of even allies, especially ones that are hoplophobic. On the other hand, we can be assured that the United States would never engage in something that’ll undermine our liberties, such as…Nevermind, that Patriot Act pretty much ran a train on our privacy and deteriorated several civil rights, among them the Fourth Amendment. These agreements should give us all the heebie-jeebies and scream global power grab to me.

Progressive activists put 2A rights on the ballot in Oregon

Oregon’s secretary of state says a coalition of anti-gun activists and organizations have collected enough signatures to place a gun control referendum on the ballot this November, and while there’s still a small chance that the ballot initiative could get scuttled before Election Day, gun owners in the state aren’t counting on that outcome. Instead, they’re sounding the alarm about what the initiative would mean for current and would-be gun owners in the hope of rallying enough opposition to defeat the measure at the ballot box.

Initiative Petition 17, deceptively named the “Reduction of Gun Violence Act” despite targeting legal gun owners and not violent criminals, would impose several new restrictions on the right to keep and bear arms, starting with a ban on the sale and purchase of ammunition magazines that can accept more than ten rounds. Unlike other recent magazine bans, the Oregon proposal grandfathers in existing owners but would still make it a crime for anyone to purchase, sell, or transfer a “large capacity” magazine once the law takes effect.

IP 17 would also impose a new “permit to purchase” requirement on all gun owners, subjecting them to a needless round of government investigation, background checks, training, and fees before being able to legally purchase a gun. Oregon already has so-called universal background checks, so before any firearm transfer can legally take place the purchaser must undergo a background check. Gun control activists want to duplicate that process by forcing all would-be buyers to get a permit beforehand; one that requires documentation of undergoing a state-approved firearms training course, another background check conducted through the NICS system, and the sign off from a county sheriff or local police chief, who will have the discretion to deny that permit if they believe the individual “poses a risk” to themselves or others (even if the applicant has never been charged or been accused of a crime).

Several Second Amendment organizations have put out statements pointing out the hidden consequences buried in the initiative’s fine print, with the Oregon Firearms Federation warning that the ballot measure, if approved, would allow for indefinite waiting periods for gun purchases.

As you know, Oregon already requires the permission of the Oregon State Police before a person can purchase a firearm. Firearms may not be purchased or transferred without approval of the State Police through the Oregon background check system.

Oregon State Police have no statutory time limit on how long they can take to conduct a background check. There are many cases of people waiting over 2 years for the completion of a check. Requests for information or corrections from OSP are routinely ignored.

While current law allows a transfer to take place after 3 business days if the OSP has not completed the check, in practice that virtually never happens because dealers fear retribution from the ATF. (This ballot measure removes even that one small and rarely used safeguard.)

NRA’s Institute for Legislative Action has also sent out an alert to members, noting that the measure also “creates a state registry of firearm owners and their sensitive personal information” just like the one in California that was recently leaked by the state Attorney General’s office.

There is a sliver of hope that the measure won’t appear before voters this fall. NRA-ILA says there is still a chance for gun owners to weigh in before the ballot initiative receives it’s final approval in early August.

The Explanatory Statement Committee (ESC) will draft the statement for the ballot. The title of the draft is “Reduction of Gun Violence Act.” Initiative 17 does nothing to reduce gun violence and blatantly disregards your constitutional rights.

Please tell your friends, family, and fellow sportsmen and women to vote NO on November 8, 2022.

On August 3, 2022, NRA members, Second Amendment advocates, and the public will have an opportunity to comment on, and challenge, the statement. Your NRA-ILA will update you with the language of the draft statement as it becomes available. It is critical that you provide comments on the draft statements identifying the unconstitutional infringements Initiative 17 will place on law-abiding firearm owners in Oregon.

We’ll be following up here as well when that information is released. If IP 17 does end up being approved by voters, its provisions are almost certainly going to be challenged in court soon after the votes are tallied, but it’s always better to defeat a bad bill (or in this case, a voter referendum) than to try to overturn a bad law. Now’s the time for Oregon gun owners to be heard, and to remind their friends and neighbors that while the state’s shocking rise in violent crime is real, it won’t be stopped by targeting legal gun owners and their constitutionally-protected right to keep and bear arms in self-defense.

New Documents Reveal Huge Scale of Government Cellphone Tracking of Citizens.

The Department of Homeland Security (DHS) used mobile location data to track people’s movements on a much larger scale than previously known, according to new documents unearthed by the American Civil Liberties Union (ACLU).

It’s no secret that U.S. government agencies have been obtaining and using location data collected by Americans’ smartphones. In early 2020, a Wall Street Journal report revealed that both Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) bought access to millions of smartphone users’ location data to track undocumented immigrants and suspected tax dodgers.

However, new documents obtained by the ACLU through an ongoing Freedom of Information Act (FOIA) lawsuit now reveal the extent of this warrantless data collection. The 6,000-plus records reviewed by the civil rights organization contained approximately 336,000 location points across North America obtained from people’s phones. They also reveal that in just three days in 2018, CBP obtained records containing around 113,654 location points in the southwestern United States — more than 26 location points per minute.

The bulk of the data that CBP obtained came from its contract with Venntel, a location data broker that aggregates and sells information quietly siphoned from smartphone apps. By purchasing this data from data brokers, officials are sidestepping the legal process government officials would typically need to go through in order to access cell phone data.

Documents also detail the government agencies’ efforts to rationalize their actions. For example, cell phone location data is characterized as containing no personally identifying information (PII) in the records obtained by ACLU, despite enabling officials to track specific individuals or everyone in a particular area. Similarly, the records also claim that this data is “100 percent opt-in” and that cell phone users “voluntarily” share the location information. But many don’t realize that apps installed on their phones are collecting GPS information, let alone share that data with the government.

The ACLU says these documents are further proof that Congress needs to pass the bipartisan Fourth Amendment Is Not For Sale Act, proposed by by Senators Ron Wyden (D-OR) and Rand Paul (R-KY), which would require the government to secure a court order before obtaining Americans’ data, such as location information from our smartphones, from data brokers.

Shreya Tewari, the Brennan Fellow for ACLU’s Speech, Privacy, and Technology Project, said: “Legislation like the Fourth Amendment Is Not For Sale Act would end agencies’ warrantless access to this data and head off their flimsy justifications for obtaining it without judicial oversight in the first place.”

Spokespeople for Venntel and Homeland Security did not immediately comment on the report.

Supreme Court EPA Decision may Apply to ATF Rules

On June 30, 2022, the Supreme Court issued its decision on the West Virginia v. EPA case. The decision reinforced earlier precedent on the non-delegation doctrine. It is a welcome start to roll back the lawlessness of the administrative state. Might the EPA case signal a willingness to strike down arbitrary rule changes in the ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) agency?

The architects of the administrative state understood very well it was a critical way to undermine the Constitution:

The reason for this is that the ideas that gave rise to what is today called “the administrative state” are fundamentally at odds with those that gave rise to our Constitution. In fact, the original Progressive-Era architects of the administrative state understood this quite clearly, as they made advocacy of this new approach to government an important part of their direct, open, comprehensive attack on the American Constitution.

In the decision, on page 4 of Justice Gorsuch’s concurrence, in footnote 1, Justice Gorsuch points out the Progressive disdain for power in the hands of the people:  

1. For example, Woodrow Wilson famously argued that “popular sovereignty” “embarrasse[d]” the Nation because it made it harder to achieve “executive expertness.”

In the EPA decision, the Court explains it is defending the Constitutional protections of separation of powers. It shows there is a long history of court decisions preventing the agglomeration of powers from one of the three governmental branches to another by improper delegation. From the decision p. 17-18:

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Dettelbach’s Confirmation Will Hasten the Neutering of the ATF

With last week’s confirmation of Steve Dettelbach to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives, gun control advocates and other nanny-staters are celebrating the agency’s first confirmed director since 2015. But what most of them aren’t taking into account is that NYSRPA v. Bruen makes putting an aggressive new leader at the top of ATF a terrible idea for the long-term health of their anti-gun agenda.

Why Pro-Gun and Republican Politicians Have Kept BATFE Without a Permanent Director

Before I get into why nominating a strong anti-gun head is bad for their agenda right now, I want to quickly review why BATFE hasn’t had a permanent Director in so many years.

Here’s a good example of a one-sided interview showing what Democrats think is behind the lack of leadership at the BATFE . . .

No, it’s not that Republicans love guns, hate gun laws, and want to hamper the enforcement of federal gun laws (if only). The reality is basically the opposite. The BATFE has a long history of not only questionable ethics, but downright criminal activity against law-abiding gun owners and people working in the firearms industry. It would take a whole series of articles to chronicle the extent of the agency’s sorry record, but you can search our archives and I found a pretty decent summary of some of the worst abuses here.

The agency had leaders who were appointed by presidents until 2006, when it was changed to a position that requires Senate confirmation. Since then, a combination of mistrust for the agency (due to its sordid history) and the people presidents of both parties have chosen to nominate have made it difficult or impossible to get enough votes in the Senate for confirmation.

The sad truth is that most people who know much about the agency’s misconduct would rather see it dissolved altogether, but there aren’t enough votes for that. So instead, the agency as been hampered in any way possible to keep its agents from harassing law abiding companies and gun owners.

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It seems to me that they’re grasping at any straw they believe might have the barest chance of accomplishing anything.
Well, as long as it’s Bloombutt’s money they’re wasting…..

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The good news is that none of these prior complaints appear to have gone anywhere, and based on the weak sauce Everytown presents as evidence in its complaint against Daniel Defense my guess is that the same will be true here as well.

Everytown files Federal Trade Commission complaint against Daniel Defense

When you’ve got your own in-house law firm funded by your billionaire backer, its easy to waste time and effort on unserious efforts, which helps explain Everytown’s new complaint against Georgia gunmaker Daniel Defense accusing it of “deceptively marketing” firearms to teenagers through its advertising and brand placement in video games and movies. More fundamentally, however, the gun control group’s filing with the Federal Trade Commission is part of a broader strategy aimed at shutting down gun companies, and the complaint against Daniel Defense is only the latest in a string of similar filings against members of the firearms industry in recent months

We’ll get to those prior complaints in a few paragraphs, but first let’s delve into Everytown’s ridiculous assertions.

Daniel Defense has leaned on social media, especially Instagram, which has a young user-base, to promote its weapons, the complaint says, and the company does not restrict access to its accounts to users who are old enough to buy its products.

In one Instagram post, for example, the company featured a picture of Post Malone holding one of its rifles with the caption: “MK18 got me feeling like a rockstar.”

Another post, from the same day as the Uvalde shooting, promoted the DDM4 V7 model rifle — the same one the gunman would later use — with the hashtag “loadout,” a term for the gear a soldier carries into battle that the complaint says is a reference to “Call of Duty,” a game the shooter reportedly played. The company also often uses hashtags such as #callofduty and #cod to make its “Call of Duty” references on social media, the complaint says.

That’s it? Post Malone and Call of Duty?

I’m a soon-to-be 48-year old who listens to Post Malone (ironically after my wife, who’s nine years my senior, turned me on to his music) and played Call of Duty and other first-person shooters for years until fairly recently, and I’m far from alone. In fact, according to data on Call of Duty demographics, only about 1/4 of all players are younger than 25, which makes sense given the game’s “M” rating. Everytown has absolutely no evidence that Daniel Defense is intentionally marketing its firearms to younger teenagers, which frankly would be a terrible business strategy given that you can’t even purchase a rifle until you’re 18-years old. And if Daniel Defense is marketing its products to adults under the age of 21 there shouldn’t be an actionable issue since that age group is able to lawfully purchase and possess a long gun under federal law.

This complaint has less to do with Daniel Defense specifically and much more to do with the gun control lobby’s attack on the firearms industry as a whole.

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Dept. Commerce Census Bureau Requesting Sales Records From Gun Holster Companies?

Why would the Census Bureau request customer records from American gun holster companies?

That is the question AmmoLand News is asking. Several major holster manufacturers/providers received notices from the Department of Commerce Census Bureau requesting order numbers, product descriptions, and where the items were being shipped. A few holster companies have refused to turn over the requested information to the federal government.

Two of these companies that received the letters and refused are JM4 Tactical and On Your Six Holsters.

“We will never turn over any information on our customers to the government no matter the cost us,” Chad Myers, President of JM4 Tactical, said. “To do so would violate our core beliefs. We need to stand up to an overbearing government. Our customers can rest assured that their information is safe with us!”

The Census Bureau sends out the Commodity Flow Survey to random companies every year. The purpose of the survey is to help the federal government understand the flow of commerce to help shape policies regarding transportation and shipping. This year it seems an abnormal amount of holster companies have received the notice leading some of the holster companies to wonder if the federal government has targeted them.

Some companies reached out to Arbiter Weston Martinez of Texas for help. Mr. Martinez is the former Texas Real Estate Commissioner under former Governor Rick Perry. Mr. Martinez is well connected in the political sphere and believes that the companies are being targeted to gather intel on the gun market. He has vowed to help push back against the alleged government overreach.

“Clearly, the Biden administration is saber rattling for the left in the wake of all the recent losses they have incurred by Supreme Court rulings,” Martinez said. “My clients and I will never back down from anyone that is trying to impugn our Constitutional and God-give rights like the Second Amendment.”

The Census Bureau claims that these companies are bound by law to turn over all requested information.

The Census website claims that companies who refuse to turn over the information could face a fine of up to $5000?

After looking into the law, the statutory limit on fines is $500. It is unclear if the web designer made a typo on the site or if it was a scare tactic to compel companies to turn over information.

Only one company was ever criminally charged with not filling out the survey, and that was in 1994. That doesn’t mean these companies are not in danger. The Biden administration has been hostile to the firearms industry, and these companies that make it easier to carry a concealed gun might be the next group to be targeted.

The companies worry about the Biden administration using the information to target concealed firearms carriers. Since the Bruen decision, there has been an explosion of people in the former “may issue” states looking to carry firearms. The Bruen decision confirmed that we the people have a right to carry a gun outside the home for self-defense. Using holster data, the government could potentially figure out where people plan on concealing a firearm and match that up against permitting data to determine who will be carrying arms without going through the “proper” channels to carry a gun.

AmmoLand News reached out to the Census Bureau, but our calls were not returned.

Census Bureau Gun Holsters Survey_Redacted

Census Bureau Gun Holsters Co Survey

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While the supply chain crisis and the placation of the California protestors continue, for now, remember the Democratic Party ultimately intends to take AB5 national, so be on the lookout for more freedom-damaging bills just like it coming soon near you.

Truckers Say California Law Likely to Make U.S. Supply Chain Crisis Even Worse.

Since last fall, PJ Media has been chronicling the U.S. supply chain crisis at our nation’s portsrailroadshighwaysairports, and supermarket shelves. Over the intervening months, no amount of presidential or gubernatorial bloviating, photo-op visits, or misguided fines has truly fixed the congested conditions to get the supply chain back on track. And this month, a 2019 Democratic law is set to go into effect which will add even more stress to the already broken system.Yes, in their oh-so-vast wisdom, California Democrats passed Assembly Bill 5 (AB5) to force perfectly content freelancers and independent contractors (also known as “gig workers”) to be reclassified as employees. Like most leftist regulations, AB5’s initial intentions were one thing (“to protect all the poor mistreated gig workers” who didn’t  actually need or want protection) while its real-world outcomes are something thoroughly different (forcing employers to replace gig workers and decimating the industries that rely on them).

Touted as the leftist cure to save gig workers from exploitation, in reality, AB5 is simply a job- and freedom-killing monstrosity. AB5 limits the freedom of California’s workers to be independent contractors. Instead, it forces them to be considered salaried employees, which means the employers are also forced to place them under the existing laws for health insurance, retirement, and a myriad of other regulations concerning full-time employees. While AB5 does exempt some specific occupations from its onerous regulations, the state’s over 70,000 independent truckers were not explicitly among those exemptions in the original bill.

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Missouri Attorney General Condemns FBI’s Illegal Attempts to Harvest Concealed Carry Permit Information from Missouri Sheriffs

JEFFERSON CITY, Mo. – Today, Missouri Attorney General Eric Schmitt sent a letter to FBI Director Christopher Wray demanding that they cease their attempts to illegally obtain information from local sheriffs on Missourians who have concealed carry permits. Missouri law specifically prohibits the sharing of information on concealed carry permit holders to any entity – local, state, federal, or otherwise.

“The FBI has absolutely no business poking around in the private information of those who have obtained a concealed carry permit in Missouri,” said Attorney General Schmitt. “The Second Amendment rights of Missourians will absolutely not be infringed on my watch. I will use the full power of my Office to stop the FBI, which has become relentlessly politicized and has virtually no credibility, from illegally prying around in the personal information of Missouri gun owners.”

The Missouri Attorney General’s Office became aware that the FBI is planning to travel to Missouri in August to do “audits” at sheriff departments across the state, which would include harvesting information on those who have legally obtained a concealed carry permit. The letter states, “It has come to my attention that the Federal Bureau of Investigation has informed several Missouri county sheriffs that they will be showing up in August to ‘audit’ CCW permit holder records. The FBI states that, ‘The audit includes an onsite review of your Concealed Carry Weapons Permits…’ Let me be perfectly clear. Allowing federal agents from the FBI to have access to records of Missourians who have a permit to carry a concealed weapon violates Missouri law and infringes on our Second Amendment rights.”

Missouri law states, “Information retained in the concealed carry permit system under this subsection shall not be distributed to any federal, state, or private entities . . . .” § 571.101.9(2), RSMo.

At the end of the letter, Attorney General Schmitt promises to use the full power of his Office to stop the FBI’s attempts to obtain information on Missouri concealed carry weapons permit holders.

The full letter can be found here: https://ago.mo.gov/docs/default-source/press-releases/2022-7-13-ltr-fbi.pdf?sfvrsn=5fbbdf7_2

it’s because they’re RINOs (Republicans In Name Only)

Why Did Two Republicans Just Save Biden’s ATF Nominee?

Yet again, Republican members of the U.S. Senate pitched in to deliver a victory for President Joe Biden and Democrats on Tuesday by helping their across-the-aisle colleagues confirm the president’s pick for ATF director.

The U.S. Senate is more of a mess than usual this week as Majority Leader Chuck Schumer (D-NY) is out with COVID, as is Sen. Richard Blumenthal (D-CT). Sen. Patrick Leahy is still recovering from a fall that necessitated a hip replacement for the 82-year old Democrat from Vermont. The three sidelined Democrats showed how precarious the majority for Biden’s party has become.

The tight math meant that the planned confirmation vote for Biden’s second pick to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives — former U.S. Attorney for the Northern District of Ohio Steve Dettelbach — was in jeopardy. Reliably, Republicans stepped up to hand Joe Biden a victory and confirm his nominee — the first Senate-approved ATF director in years.

The final vote came down 48-46, with two Republicans — Sens. Susan Collins of Maine and Rob Portman of Ohio — voting with all the Democrats present to confirm Dettelbach as the ATF’s director.

Previously, Dettelbach’s confirmation was deadlocked by a tied party-line vote in the Senate Judiciary Committee that required extra steps from Schumer to move the nomination along via discharge petition, which passed the full senate with support from Sens. Portman and Collins to achieve the simple majority needed to rescue a nominee who is not reported favorably — that is with a majority-supporting vote — from the Judiciary Committee.

Both Sens. Collins and Portman also voted with Democrats to advance Dettelbach’s nomination to a final vote earlier on Tuesday as well.

Without the support from those two Republicans, Biden’s ATF nominee might not have been rescued from the unfavorable Judiciary Committee vote, not voted on this week, or perhaps never confirmed at all.

Biden previously called his ATF nominee “immensely qualified” for the job, but there were concerns from Republicans over Dettelbach’s support for restrictions on Second Amendment freedoms. The NRA slammed Biden’s nominee, noting he “endorsed gun bans, restrictions on lawful firearm transfers, and further expansion of prohibitions on who can lawfully possess a firearm. In short, it’s unclear what gun control measures Dettelbach doesn’t support,” the NRA noted.

What’s more, Gun Owners of America pointed out that Dettelbach has admitted to never owning a firearm while being considered to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Yes, this will work out well………..


Senate Confirms Obama’s Harvard Law School Classmate to Lead ATF

The Senate voted Tuesday to confirm Barack Obama’s Harvard Law School classmate Steve Dettelbach to head the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

The Hill reports that the vote was 48-46 with two Republicans siding with the Democrats in support of Dettelbach.

Those two Republicans were Sens. Susan Collins (ME) and Rob Portman (OH).

On April 11 Breitbart News pointed to a Hill report which indicated that Dettelbach was Obama’s Harvard Law School classmate.

The Daily Mail observed that Dettelbach voiced support for various gun controls during an “unsuccessful” bid to become attorney general of Ohio in 2018.

The Mail noted that Dettelbach “has called for an assault weapons ban and universal background checks.”

During Dettelbach’s unsuccessful bid for attorney general of Ohio, WOSU reported that he also opposed allowing teachers and staff to be armed for classroom defense, even in situations when those teachers and/or staff were “former military or law enforcement.”

Dettelbach was President Biden’s second choice for ATF director. His first choice, David Chipman, was nominated only to have the nomination withdrawn amid public backlash and the nominee’s failure to gain enough Senate support to be confirmed.

Breitbart News noted that Chipman was a Gabby Giffords gun control associate, that he confirmed his support for an AR-15 ban, that he allegedly made disparaging comments about black ATF agents, and that he boasted he was not a “typical” white man (because he is progressive).

Is West Virginia v. EPA The SCOTUS Win We Didn’t Realize?

While Second Amendment supporters celebrate the 6-3 ruling in New York State Rifle and Pistol Association v. Bruen, they may also have been given a huge win by none other than Chief Justice John Roberts in West Virginia v. Environmental Protection Agency.

The gist of the opinion Roberts wrote in West Virginia v. EPA is that government agencies like the EPA – or the Bureau of Alcohol, Tobacco, Firearms, and Explosives – cannot exceed the powers granted by Congress. This opens up a whole new front in defending our Second Amendment rights in court.

Anti-Second Amendment extremists have long like to use administrative law to target our rights. For instance, in the Clinton administration, ATF cracked down on FFLs who had a low volume of sales – the so-called “kitchen table” dealers. As the NRA noted, that crackdown greatly reduced the number of FFLs. That can be dealt with by appropriate litigation now.

Congress hasn’t required FFLs to have a storefront, per 18 USC 923, so any criteria ATF uses outside what is in the laws passed by Congress could be open to a challenge in federal court. This could be a chance to really rein in this agency that many Second Amendment supporters would love to dissolve if they got the chance. It doesn’t just stop at FFLs.

Put it this way, the ban on “bump stocks” is now much more easy pickings in court, if only because it does raise questions as to whether they can be regulated administratively under 18 USC 921 and 26 USC 5845. This is just one hot button issue – there are others, like ATF records retention.

The ATF has been creative in trying to hold on to NICS information after the check says a dealer can proceed with the sale – a fight going on since NICS started in the late 1990s. Under the precedent established here, the clear Congressional prohibitions on maintaining those records – indeed, mandating “immediate destruction” – could be an avenue for litigation by pro-Second Amendment organizations.

Then there are administrative import bans of firearms. The list goes on and on, and is a target rich environment for litigation – provided that Second Amendment supporters have access to good attorneys who can see said litigation through.

Still, though, Second Amendment supporters will need to defeat anti-Second Amendment extremists via the ballot box at the federal, state, and local levels in order to ensure that ATF never does get that clear authority to go after our rights.

Even the author – as close as he gets to it – can’t make that philosophical leap that goobermint is supposed to secure rights, not restrict the citizens that it’s supposed to serve, not lord over.


BLUF
There is much that needs changing in federal law, from firearms regulation to environmental protections. [like maybe following the dictate of the 2nd amendment’s ‘shall not be infringed‘ perhaps?]
But these reforms require legislation written and passed by legislators, not regulatory misadventures undertaken by unelected political appointees in the executive branch. On those grounds alone, the Gun Owners of America deserves to win its lawsuit against the ATF.

That would be a good start

The ATF Can’t Write New Gun Laws

A lawsuit filed by the Gun Owners of America against the ATF seeking to stop a new rule from taking effect asks many pertinent questions — some technical, some legal — but the question at the heart of it is one that is relatively easy to answer: Is the ATF actually Congress?

No, it isn’t.

The United States has a serious problem with violent crime. As I have argued at some length, this is not a problem that is likely to be much improved by means of firearms regulation — but, to the non-negligible extent that there is room for constitutionally sound reform of U.S. firearms law, it is a job for Congress, not for the ATF. The ATF has strayed from the implementation of regulations to the creation and implementation of new policies, which is properly the job of the people’s elected representatives in the national legislature.
The ATF’s current administrative pickle is this: It is more difficult than you might think to say just what a “firearm” is. The 1938 Federal Firearms Act defined a “firearm” in the familiar way, as “any weapon, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosive” — but also added “or any part or parts of such weapon.”
To muddy the waters even more, a “firearm muffler or firearm silencer” was defined as a “firearm,” too, under the 1938 law.
There was a good reason for defining gun parts as guns, one that remains relevant today: If you want to control the sale of firearms, then you can’t allow Bob to sell Sam 99 percent of a gun as “gun parts” on Monday and the other 1 percent on Tuesday and pretend like a firearm hasn’t been sold.
But the problem there should have been obvious and soon became obvious: Firearms have dozens and dozens of parts, and the “any part or parts” language made every screw, nut, bolt, etc. a “firearm” under the law. That created obvious absurdities (selling someone a pair of fancy mother-of-pearl grips to replace the standard walnut ones on his six-shooter would be selling him a “firearm”) and unworkable ambiguities (Is a scope a part of a firearm? If so, at what point does it become a part of a firearm? Is a scope that is used for a non-firearm such as an air gun but could be used for a firearm legally a part of a firearm and hence a firearm?). Firearms are commonly modified and customized (for instance, by installing new sights or a different trigger), and some parts wear out and need replacing; that 1938 law notionally made any part acquired for such a customization or repair a firearm for legal purposes.
The unworkability of this status quo was addressed in 1968 — or, at least, Congress tried to address it, replacing the words “part or parts” with “frame or receiver.” What is a frame or receiver? According to the law, it is “that part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” The problem with that definition is that even in 1968, there were many firearms designs that had no single part that met the legal criterion of housing all three specified parts — hammer, bolt or breechblock, and firing mechanism — and most firearms made today have no single part that satisfies the criterion. The ATF has been careering around administratively for decades trying to do something with that poorly written law.
But the ATF’s regulatory walk is not random.

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Dear Democrats, demoncraps THIS Is What Your Oppressive Global Initiatives Lead To

After suffering from weeks of brutal food and fuel shortages, as well as crippling inflation, Sri Lankans have had enough.

Riots have broken out throughout the impoverished country. Police have used tear gas and water cannons but to little effect.

Shortly after thousands of angry citizens stormed the presidential palace, even going so far as to swim in his pool, Sri Lankan President Gotabaya Rajapaksa declared that he will step down. Prime Minister Ranil Wickremesinghe agreed to resign as well after his home was torched.

FAST FACTS – Sri Lanka Went Woke:

  • In an attempt to improve Sri Lanka’s Environmental, Social, and Governance (ESG) score (which is totally communist), President Rajapaksa forced farmers to grow food organically and banned the use of synthetic fertilizers and pesticides, thus causing the nation’s rice crop to fall by 20% in the first six months. Crop productions dropped 40-50%.
  • Food shortages were next. (Hey Netherlands, are you watching?)
  • Inflation rose to 54.6% as of June.
  • Sri Lanka incurred outrageous expenses importing food and “organic” fertilizer.
  • Tea production, Sri Lanka’s largest export, was decimated.
  • Inflation exploded and half a million Sri Lankans slid into poverty.

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See Also Sri Lanka

A Popular Uprising Against the Elites Has Gone Global

A popular uprising of working-class people against the elites and their values is underway—and it’s crossing the globe. There is a growing resistance by the middle and lower classes against what Rob Henderson has coined the “luxury beliefs” of the elites, as everyday folks realize the harm it causes them and their communities.

There were early glimmerings last February, when the Canadian Trucker Convoy pitched working class truck drivers against a “laptop class” demanding ever more restrictive COVID-19 policies. You saw it as well in the victory of Virginia Governor Glenn Youngkin, who ran on parents’ rights in education and went on to win both suburbs and rural areas. You can see it in the growing support of Hispanic voters for a Republican Party, which increasingly identifies as anti-woke, and pro-working class. And now we’re seeing the latest iteration in the Netherlands in the form of a farmer’s protest against new environmental rulings that will ruin them.

Over 30,000 Dutch farmers have risen in protest against the government in the wake of new nitrogen limits that require farmers to radically curb their nitrogen emissions by up to 70 percent in the next eight years. It would require farmers to use less fertilizer and even to reduce the number of their livestock. While large farming companies have the means to hypothetically meet these goals and can switch to non-nitrogen-based fertilizers, it is impossible for smaller, often family-owned farms. The new environmental regulations are so extreme that they would force many to shutter, including people whose families have been farming for three or four generations. In protest, farmers have been blockading streets and refusing to deliver their products to supermarket chains. It’s been leading to serious shortages of eggs and milk, among other food items.

But the effects will be global. The Netherlands is the world’s second largest agricultural exporter after the United States, making the country of barely 17 million inhabitants a food superpower. Given global food shortages and rising prices, the role of Dutch farmers in the global food chain has never been more important. But if you thought the Dutch government was going to take that into account and ensure that people can put food on the table, you would be wrong; when offered the choice between food security and acting against “climate change,” the Dutch government decided to pursue the latter.

What is particularly frustrating is that the government is fully aware that what it is asking farmers to do will drive many of them out of existence. In fact, the government originally planned to move at a slower pace—until a lawsuit brought by environmental groups in 2019 forced an acceleration of the timetable.

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FDA Finally Admits It Caused the Baby Formula Shortage.
The agency is now taking small steps to allow foreign formula manufacturers to import their goods into the US

The Food and Drug Administration (FDA) has finally determined what’s to blame for America’s recent shortage of baby formula.

The FDA.

More specifically, it’s the FDA’s unnecessary and protectionist rules that effectively ban foreign-made baby formula from being imported into the United States. On Wednesday, the agency announced plans to tweak those rules so foreign formula manufacturers can permanently import their goods into the U.S., giving American consumers greater choice in the marketplace and ensuring more robust supply chains.

“The need to diversify and strengthen the U.S. infant formula supply is more important than ever,” FDA Commissioner Robert Califf said in a statement. “Ensuring that the youngest and most vulnerable individuals have access to safe and nutritious formula products is a top priority for the FDA.”

That might be true now, but it clearly hasn’t been the case in the past. As Reason has detailed throughout the recent crisis, the FDA’s priorities have been protecting the domestic formula industry (and the dairy industry, which provides key inputs for baby formula) from foreign competition. As a result, it’s nearly impossible to find foreign-made baby formula in the U.S., even though formula manufacturers based in England, the Netherlands, and Germany are some of the biggest suppliers of baby formula to the rest of the world.

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SCOTUS ruling on right to carry invoked in challenge to machine gun ban

A Wisconsin firearms retailer and popular YouTube influencer is asking a federal court to throw out charges that he was illegally selling devices to convert semi-automatic firearms into fully automatic firearms, arguing that the National Firearms Act of 1934, which tightly regulated the sale of machine guns, is unconstitutional based on the Supreme Court’s recent decision in  NYSRPA v. Bruen.

Matthew Hoover was indicted back in January alongside Kristopher Ervin of Florida for selling auto sears under the name Auto Key Card, which was marketed as a bottle opener. The feds contend, however, that the marketing of the card was simply intended to mask its real purpose; c

The cards came laser engraved showing the parts of an AR-15 automatic connector, commonly known as a “lightning link.”

The lightning link, when assembled from its separate components and installed in an AR-15, could convert it to full-auto without any additional modifications to the firearm.

Because of this, the ATF decided the cards were close enough to auto sears to fall under the machine gun restrictions under the Firearms Owners’ Protection Act amendment of the National Firearms Act.

Under the original NFA, machine guns could still be purchased, although additional paperwork and the payment of a $200 tax was required. When the Firearms Owners’ Protection Act was signed into law in 1986, however, all new machine guns were banned for purchase by civilians, and building your own is a federal no-no as well.

Now attorneys for Hoover are arguing that, based on the Supreme Court’s decision in Bruen, the indictment should be thrown out because the constitutionality of the machine gun restrictions have been called into question

What makes Bruen particularly germane to the instant matter is the announcement of a clear legal standard for the evaluation of acts regulating the peaceable keeping and bearing of arms. Bruen identified the Court of Appeals “coalesce[ing] around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-ends scrutiny”, the Court correctly identified this as “one step too many[.]

Those previous decisions at the various Courts of Appeal manifested deference to the Government in a manner unlike any other fundamental right, and the inexplicable consideration of regulations clearly contemplating the keeping and bearing of arms as beyond the scope of the Second Amendment.
… Finally, though, we have a standard which clearly articulates the burdens in a case involving restrictions on the right to keep and bear arms. It is, as artfully penned by the Court, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The Government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearms regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

The Department of Justice will undoubtably argue that fully-automatic firearms are not in common use, and are therefore both unusual and dangerous and fall outside of the scope of the Second Amendment. They can even point to Justice Antonin Scalia’s majority opinion in Heller, when he implied that “M-16 rifles and the like” because they are not and were not in common use by civilians at any point in time during our nation’s history. Hoover’s attorneys anticipate that argument and reject it in their new filing, arguing that “the court’s invocation of ‘dangerous and unusual weapons in Heller and subsequently Bruen was for the purpose of discussion of what might be a constitutionally acceptable law, rather than the endorsement of any particular extant policy.”

Rather, the only way a court may conclude Defendant’s conduct falls outside the scope of the Second Amendment’s unqualified command remains clear: the Government must prove the particular regime in question is consistent with the history and tradition of the United States.

Furthermore, the question of whether a weapon is “in common use at the time,” necessarily pins the analysis to the time before the prohibition. To consider otherwise would incentivize the Government to legislate wantonly and aggressively, seizing arms, then later evade constitutional scrutiny by suggesting that the arms cannot be in common use, because the Government prohibited them. Such circular logic would be inconsistent with any fundamental rights jurisprudence.

The request for dismissal goes on to argue that Hoover and his co-defendant aren’t accused of selling actual machine guns. Rather the ATF decided that the thin, credit card-sized piece of metal can become a machine gun if purchasers use a little elbow grease.

In addition to the previously raised Constitutional questions, nothing in the applicable history and tradition of the United States supports the categorical ban of machineguns, much less the item here at issue—a tchotchke the Government alleges might possibly, with transformative labor, one day become a machinegun. Further, the ATF’s decision that the tchotchke at issue—a stainless steel card with some lines lightly thereupon engraved—was a machinegun came completely by administrative fiat, absent even notice and comment. Our Nation’s history and tradition does not, and cannot, support a finding that an alleged drawing of a part is that part merely because an unelected bureaucrat unilaterally willed it to be. To hold otherwise would be to grant the Bureau more power than Congress could have ever granted it, and make innumerable items potentially illegal.

The attorneys for Hoover then cite testimony given by then-Attorney General Homer Cummings in 1934 during debate over the NFA.

MR. LEWIS: I hope the courts will find no doubt on a subject like this, General; but I was curious to know how we escaped that provision in the Constitution.

ATTORNEY GENERAL CUMMINGS: Oh, we do not attempt to escape it. We are dealing with another power, namely, the power of taxation, and of regulation under the interstate commerce clause. You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say “We will tax the machine gun” and when you say that “the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated”, you are easily within the law.

MR. LEWIS: In other words, it does not amount to prohibition, but allows of regulation.

ATTORNEY GENERAL CUMMINGS: That is the idea. We have studied that very carefully.

In other words, the NFA was intentionally never designed to be an outright ban on the possession of machine guns, but the Hughes Amendment to FOPA changed all that by banning the possession or purchase of any automatic firearm manufactured after FOPA became law.

It’s a good argument, but whether or not the judge goes for it is a different story. My gut tells me that we’re going to get the same reliance on Scalia’s aside in Heller to keep the charges against Hoover in place for now, but I’m very interested to see what happens if and when this case goes to trial. It’s hard to argue that the NFA is “longstanding” when the Court just threw out a New York law that’s twenty years older, and I’m not aware of any historical analogues to the Hughes Amendment that could come into play, which makes this case one to watch going forward.