Firearm Legislation & Information

Bump Stock Ban Overruled

On June 14, 2024, the United States Supreme Court in its decision in Cargill v. Merrick Garland, et al, 22-976 struck down the ATF’s bump stock rule in a 6-3 decision written by Justice Thomas. Tennessee Firearms Association and the Tennessee Firearms Foundation joined Gun Owners of American and Gun Owners Foundation by submitting an amicus brief that urged the Court strike down the ATF’s bump stock rule. 

Congress defined a machine gun as one with one single pull of the trigger allows the gun to continue to fire until the trigger is released, the gun runs out of bullets, or the gun jams and firing is halted.  There was no mention of the "rate" of fire.

A semi-auto fires one round with each pull and reset of the trigger.

Therefore, by definition, a bump stock does not a machine gun make and the court's decision was proper within the guidelines of the law as passed by congress.

ATF "Rule" on private gun sales

There is a lot of confusion stemming from the 466 page "rule" dealing with private sales.  New and heavily ambiguous restrictions have been placed on personal face to face sales.  Definitions of "engaged in the business" and " intention to make profit," have been changed.  These changes that have not been fully defined can put a person in danger of experiencing the wrath of the ATF and be looking at some serious jail time.

Here is a video that helps explain some of the subtle nuances built into this rule.  Even after the two lawyers give their best shot at clearing things up, there is still a lot of unanswered questions.

Armed Attorneys

Permit-less carry vs. Constitutional carry From the Tennessee Firearms Association web pages.

 REAL “constitutional carry” means that it is not a crime to carry a firearm for a lawful purpose, such as self-defense. Nor is it a crime to carry a firearm in most places – including public places – unless the place falls into a very narrow and limited exception. It is critical to understand that while a state may have a “permitless carry” law, most of those laws are not constitutional carry laws

Tennessee has Tennessee Code Annotated § 39-17-1307(a)(1) which says “A person commits an offense who carries, with the intent to go armed, a firearm or a club.” That means it is a crime to carry any firearm in Tennessee “with the intent to go armed”. That law is broad that it is even a crime to carry a firearm with the intent to go armed on your own property, in your own home, or even with a permit. That is a true statement because Tennessee Code Annotated § 39-17-1308 makes each of those factors “defenses” to the criminal charge. When something is a “defense” or an “exception” to a criminal charge, the burden is on the citizen to prove to a law enforcement officer or a jury that the individual’s conduct satisfied the elements of the defense.

However, Tennessee’s laws do contain a “permitless carry” provision. Tennessee’s permitless carry provision is not constitutional carry although some government officials and others have claimed it is. No, Tennessee’s “permitless carry” scheme is very limited and it clearly fails to satisfy the United States Supreme Court’s 2nd Amendment analysis as set forth in New York State Rifle and Pistol Association v. Bruen, No. 20-843. The scheme that Bill Lee pushed and that the Legislature enacted in 2021 was nothing more than a defense that the citizen bears the burden of raising if stopped, detained, questioned or criminally charged.

The Tennessee Firearms Association has actively been trying to have the "intent to go armed" law removed or changed for years. Most of our legislators have ignored their attempts, but the TFA has not quit the effort and like most Tennessee gun legislation, it takes many sessions to get things changed or corrected. This is just another one that has to get done. 

Supreme Court to take up bump stock rule

There have been a number of lower court challenges to the ATF "rules" about items like bum stocks, force reset triggers and pistol braces. All of these items were deemed legal before going to market, but in the wake of ATF rule making, they have been classified as "machine guns." The actual law defining a machine gun is based on a gun that continues to fire with one pull of the trigger until that trigger is released or the gun runs out of ammo. On Friday 11/3, the Supreme Court agreed to take up the case on bump stocks. Their decision on this issue will either reject or enhance the ATF's ability to act as a governing body instead of the enforcement agency it was set up to be. Here is an article discussing the situation.

 >>>>>>> The U.S. Supreme Court on Friday agreed to take up a case involving the Trump-era ban on "bump stocks" that was initiated in the wake of the Las Vegas mass shooting. The justices agreed to hear arguments early next year over the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) rule, which was implemented in 2017. The case pertains to whether the Department of Justice, which oversees the ATF, followed federal law in changing the regulation around bump stocks, which are able to increase the rate of fire in some semiautomatic weapons. Federal appeals courts have come to different decisions on whether the ATF regulation defining a bump stock as a machine gun accords with federal law. In 2010, under the Obama administration, the agency found that a bump stock should not be classified as a machine gun and therefore should not be banned under federal law. A 1986 federal law prohibits Americans from owning fully automatic weapons or parts that are used to convert other firearms into automatic weapons, although some exceptions were made to fully automatic firearms produced before May 1986. The ATF in 2018 said that bump stocks fall under the regulation of the 1986 law. The ATF policy went into effect in 2019 after the U.S. Supreme Court declined to issue an order to block it. In October 2022, the U.S. high court turned away two previous cases brought by gun rights advocates challenging the ban. Opponents of the bump stock ban said that the legal definition of a machine gun has been distorted and argue that courts shouldn't defer to the ATF's interpretation of the rule. They have also argued that an individual needs to lean in and apply pressure to the stock of a gun fitted with a bump stock to get it to work, differing from how an automatic weapon, such as a machine gun, works. 

ATF Rule Changes

The last two years have seen a number of changes in one of our governmental agencies, Alcohol Tobacco and Firearms (ATF).  Those changes center around the unusual power that has been bestowed upon it to make "rules" that for now seem to have the power of law.

These rules have been geared towards gun owners either directly or indirectly.  For instance the pistol brace rule that made a gun that had any form of securing the butt end to a person's arm fall into the category of a machine gun.  To make it legal, one had to go through the same process necessary to get a license to own a full blown fully automatic machine gun and pay for the $200 tax stamp that goes with it.  The brace was originally designed for people with physical challenges.  There are about 30-40 million that were formerly given the OK by the ATF as being legal to install with no strings attached.

The ATF was immediately sued by a coalition of gun rights groups and the case is waiting for a high court ruling, but until that decision is made, the "rule' stands.

The problem is very simple.  By law, a machine gun is legally defined as a gun that continues to fire with one pull of the trigger.  What does a pistol brace have to do with that?

This is just one of a number of other rule situations that has placed the ATF in the forefront of controversy and law suits that remain to be judged.  The ATF is not a lawmaking agency, it is a law enforcing agency.

Final update on the "Special Session"

Welp, it turned out to be a big nothing and that may be contributed to the many e-mails, texts, letters and phone calls from people throughout Tennessee who do not want their constitutional rights stomped on.  The one real negative is that it cost us, the taxpayers about $350 K that just didn't need to be spent.

Stay vigilant and keep eyes and ears open.  Vote for those who uphold the constitution.

Further update on the "Special Session" from Tennessee Stands

 The special session is now adjourned and we survived mostly unscathed. There was a lot of touch an go during this special session and honestly, it operated a little differently than we expected. It is common for the General Assembly to arrive at a special session with a fairly set agenda on what they are going to accomplish and that typically happens short of a week. But this session presented a bit of a battle between Senate leadership and House Speaker Cameron Sexton which pushed into an additional week. Nonetheless, thanks to the leadership of Senator Paul Bailey (R - Sparta) and an adamant refusal by Senator Todd Gardenhire (R - Chattanooga) to reopen the Judiciary Committee, the Senate held its ground on the passage of only four (4) bills. SB7085 (gun safes tax relief) SB7086 (TBI reporting, Executive Order 100) SB7088 (annual report on human trafficking) SB7089 (budget appropriations bill) We don't really have any concerns to speak of regarding these bills and certainly the General Assembly left our 2nd Amendment rights intact. Additionally, we did not go down the rabbit hole of other controversial pieces of legislation dealing with mental health, juvenile courts, or autopsy reports of deceased victims. We expect these conversations may come up in the 2024 general session of the legislature. There is some concern about SECTION 8 of SB7089 (appropriations bill) designating $50,000,000 from TENNCARE to be used in the form of issuing grants to local community mental health providers and care for substance abuse. However, it is worth noting that this is NOT the Medicaid waiver that we warned about. Thankfully, that measure did not pass. This is quasi-federal money in the sense that it is coming out of leftover COVID relief funds. However, that money should not be traveling into mental health with any strings attached in terms of federal regulations. Our understanding is that the state has discretion in dispensing these funds in a variety of ways and these grants will be directed by the state of Tennessee. As long as that is indeed the case, we don't oppose that expenditure. All in all, the call for this special session by Governor Bill Lee was a complete sham and a waste of taxpayer money. And the proof is certainly now in the pudding. Due to the advocacy efforts of so many conservatives across the state of Tennessee, the General Assembly held its ground. Thank you Tennessee for engaging with your legislators and letting your voice be heard. This was a win for the 2nd Amendment and for the people of Tennessee. 

With Governor Bill Lee's Red Flag "special session" getting closer to reality in August, the battle sides are beginning to form and make their presence known even more.  The video below discusses the issue and clarifies some lesser known points surrounding it.

youtu.be/_PdXfozfi8M?t=74 

BELLEVUE, WA—The Second Amendment Foundation is celebrating a ruling by a federal judge in Texas against Joe Biden’s ATF by vacating the agency’s “final rule” which treated unfinished frames and receivers the same as if they are functional firearms.

SAF was allowed to intervene in the case last December. The case is known as VanDerStok v. Garland.

U.S. District Judge Reed O’Connor handed down the decision Friday, noting in his 38-page ruling that, “A part that has yet to be completed or converted to function as frame or receiver is not a frame or receiver. ATF’s declaration that a component is a ‘frame or receiver’ does not make it so if, at the time of evaluation, the component does not yet accord with the ordinary public meaning of those terms.”

SEE ALSO: Lawmakers Want to Tax AR Lowers to Close ‘Loophole,’ Use Revenue to Fund Gun Control

Elsewhere, Judge O’Connor puts ATF on the spot by rejecting the government’s argument that it has previously taken action against a firearm component, thus it has regulatory authority over firearm parts. But the judge observes, “If these administrative records show, as Defendants contend, that ATF has previously regulated components that are not yet frames or receivers but could readily be converted into such items, then the historical practice does nothing more than confirm that the agency has, perhaps in multiple specific instances over several decades, exceeded the lawful bounds of its statutory jurisdiction. That the agency may have historically acted ultra vires does not convince the Court it should be permitted to continue the practice.”

7/2/23  This is a point of information.  I am not in any way, making a judgement on the case.

The Supreme Court has passed a number of controversial judgements in the last month or so that has caused "disruption" for lack of a better word to many people, while at the same time causing "joy" to others.  Here we go with another one.

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The Supreme Court on Friday agreed to review whether a federal law that bans people under domestic violence restraining orders from owning firearms violates the Second Amendment. 

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled last month that people under domestic violence restraining orders retain their constitutional right to own firearms, finding that the federal law prohibiting them from doing so was unconstitutional under the Supreme Court's landmark New York State Rifle & Pistol Association Inc. v. Bruen decision. 

The Department of Justice appealed the decision in March, and the Supreme Court has now agreed to take up the case in its next term.  

Red Flag laws are a controversial phase of gun ownership.  No one wants a mentally ill person to inflict harm on anyone, be it a school child or a gathering of adults.

Unfortunately, this has been an all to frequent occurrence as of late and gun grabber politicians are right in the game and up to speed to pass legislation that is not only unconstitutional, but detrimental to all honest firearm owners.

Most Red Flag laws do not give a person a chance to defend themselves before all his or her guns are confiscated and it is up to the owners to prove they are worthy of getting the guns back.  All due process of law is trampled on.

Red Flag laws come in different flavors depending on where they were devised and how they are enforced.  At the far end of the spectrum, a former girl or boyfriend, or someone once dated, could file for a Red Flag condition and it could stick.

In August, Governor Bill Lee will have a "special session" of the Tennessee congress where he will attempt to get Red Flag laws passed here in Tennessee.  He claims his bill will be very selective as to who or whom will be eligible to flag a person.  It will include an immediate family member like a spouse.  If passed, the door has been opened for later sessions to expand the laws to possibly include those mentioned in the above paragraph as well.

These laws ignore the most important thing and that is the mental health aspect of the equation which is the one overlooked area and the one that is not addressed with the needed funding.  Yet, even if mental health becomes the criteria in determining if a person should be Red Flagged, caution still has to be exercised due to the fact many if not most people in the mental health field fall into the anit-gun category and if they are the ones who make the final decisions, those decisions could easily be based on emotion and not science.  Red Flag laws that concentrate on the implement (the gun) and not the person, leave the individual at large to possibly commit harm in other ways.  Removing firearms is just one method of control, but if the person's condition was dealt with first, it would be a much more effective way of solving the situation.

Here is a good article summing up Red Flag laws, both the good and the bad portions involved and it makes for a better general understanding of them.

www.uslawshield.com/red-flag-laws-what-are-they-how-do-they-wvork/

As of Wednesday 6/7, there are further updates on the Red Flag situation.  You can get more information by following the link below and the link in the red banner at the end of the article in the below link.

https://app.getresponse.com/view.html?x=a62b&m=BF0fWe&mc=rt&s=BFLAhtD&u=izZc&z=E9sqhL0&

Pistol Braces     As of midnight 5/31/2023 pistol braces fell under the National Firearms Act (NFA).  Attorney General Merrick Garland and Steve Dettelbach, the director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), announced new regulations Friday that would subject pistol-stabilizing braces to additional regulations, including higher taxes, longer waiting periods and registration.  By attaching a brace to a pistol the ATF deemed it a "short barreled rifle," which is a heavily regulated item.

The ATF defines a rifle as an item that is designed to be fired from the shoulder with an overall length of 26 inches or more and a barrel length of at least 16 inches whereas a pistol is designed to be fired from the hand.

There was a 120 day period that pistol brace owners had to register the braces, turn them in, or destroy them.  During that period the $200 registration fee was wavered, but that is no longer in effect.  Those who fail to comply with the requirement could face a fine of up to $10,000, or 10 years in prison, or both.

Braces were originally designed for people with shooting challenges who were unable to hold a pistol in its intended fashion.  These people could include those with arm or shoulder problems, those that are physically unstable or those with injuries that may prevent them from using a pistol.  They basically strap the gun to the arm to eliminate the need for the grip alone to be the only holding factor.

There are an estimated 3-7 million braces in circulation and as of now and the ATF stated that about 4% of the brace owners have complied with the rule up to now.

Notice I said "rule."  The ATF was granted deference by Merrick Garland.  This is a condition whereby authority to make a rule is given to an agency, like the ATF, by the courts to establish a rule in an area that the courts determine that agency is most knowledgeable.  In this case it is firearms, with the ATF being the so called "expert."  A recent congressional hearing where the current ATF director Dettelbach was in the hot seat, showed how little he really knew about his ruling.

The push-back on this rule has been tremendous so far. Texas Attorney General Ken Paxton, allied with Gun Owners of America and the Gun Owners Foundation, filed suit against the feds in the U.S. District Court for the Southern District of Texas. The 152-page suit is sweeping in its scope, and challenges the ATF's rule change on numerous constitutional grounds, even pointing out that SBRs in any context are only regulated as a vestige of a failed plan to ban all handguns back in 1934.

This came the same day that 25 states led by West Virginia Attorney General Patrick Morrisey and North Dakota Attorney General Drew Wrigley, with the Firearms Regulatory Accountability Coalition as lead plaintiff and joined by the NRA, brace maker SB Tactical, wounded veteran Richard Cicero, and gunmaker B&T USA, filed a similar suit in the U.S. District Court for the District of North Dakota. 

Other plaintiffs in the FRAC suit besides West Virginia and North Dakota include Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming.

Pistol braces are not the only area that the ATF has dipped into since this current administration has taken the wheel.  It is important that we as law abiding gun owners stay vigilant and support the causes that watch out for our rights or they will be gone.  The above information is a pure example of that.

Today 6/13/23,the House Judiciary Committee led by Chairman Jim Jordan (R-OH) voted to overturn the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) controversial pistol brace rule.

President Biden instructed the ATF to rewrite its regulations to ban pistol stabilizing devices. The ATF did the President’s bidding, reversed years of ATF opinions, and ruled that millions of pistols with stabilizing devices were now short-barreled rifles (SBRs). Gun owners could register their firearms under the National Firearms Act (NFA), remove the brace so it could not be reattached, or turn their guns in to law enforcement.  Only about 250,000 people of the estimated 3-40 million people that have braces have complied with the law as of May 31st; the deadline for registration.

There is little chance Biden will sign the "overturn resolution" into law, but the oppositions attempt rings loud and clear. BUT UNFORTUNATELY the House of Representatives bill was voted down in the Senate with a partisan vote and all Democrats voting against it.  The next set is the Supreme Court with hopes that they take the case.

From "The Reload.com"
On Thursday 6/8/23, Gavin Newsom (D.) announced his plan to amend the Constitution to add a slew of gun-control policies. But the call is more political than practical.

The California Governor wants America to adopt a 28th Amendment. It would effectively serve as a partial repeal of the Second Amendment, adding a quartet of new gun restrictions. Those restrictions include a ban on so-called assault weapons, universal background checks, a ban on 18-to-20-year-olds owning guns, and mandatory waiting periods.

The question of whether it has any chance of being ratified isn’t particularly interesting. The answer is no. At least, not for the foreseeable future.

The policies Newsom wants to add to the Constitution are not popular. Some certainly poll better than others; majorities now often oppose assault weapons bans. But none of them have been adopted by even a majority of states.

According to Giffords, 21 states require background checks for all gun sales. 10 states, including California, currently impose a minimum age of 21 for gun purchases. 10 and the District of Columbia have implemented waiting periods on gun sales or assault weapons bans.

It’s impossible to see how Newsom is going to manage to get more than 10 states on board with his new campaign. He’d need to convince 2/3rds of states to back it just to get it considered. He’d need 4/5ths to actually ratify it.

Americans have tended towards a desire for stricter gun laws even through the mass-shooting-inspired ups and downs typical of gun polling. That’s certainly a concerning trend for gun-rights advocates. However, we’d have to travel much further down that road before it gets to the point where 40 states will be on board with all, or even one, of Newsom’s proposed policies.

So, it’s pretty straightforward that this amendment effort has no chance of passing.

But what is particularly interesting is the timing and nature of Newsom’s campaign. This is something that gives him an excuse to do lots of events outside of California. He’s setting up a national campaign infrastructure with this move. And he’s doing it as President Joe Biden is struggling politically.

AND THIS:

When the Supreme Court handed down its Bruen decision, many gun rights advocates eagerly expected a raft of favorable decisions on “assault weapon” bans, the National Firearms Act, or other longstanding gun policy bugaboos to be on the horizon. Instead, it’s increasingly starting to look like the Court will have to address who can and can’t be permanently banned from owning guns.

On Tuesday 6/6/23, a full panel of the Third Circuit Court of Appeals ruled that the federal prohibition on felons owning firearms did not apply to a Pennsylvania man with a nearly 30-year-old conviction for lying on a food stamp application.

“We agree with Range that, despite his false statement conviction, he remains among ‘the people’ protected by the Second Amendment,” Judge Thomas Hardiman wrote for an 11-4 majority in Range v. Attorney General. “And because the Government did not carry its burden of showing that our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand.”

At the time of his offense, Bryan Range pled guilty to a state misdemeanor, was sentenced to three years probation, and paid under $3,000 in fines. Despite never serving a day in jail, Range was barred from owning guns for life under the Gun Control Act, which prohibits anyone convicted of a felony that could be punished with more than a year in prison or a misdemeanor punishable by more than two years in prison from possessing guns. Under Pennsylvania law at the time of his conviction, Range’s crime could have been punished by up to five years in prison, thus preventing him from acquiring firearms legally until this week.

The decision is hugely significant for several reasons. It created the first crack in the question of the constitutionality of the federal gun ban for all non-violent felons. It also created a brand-new circuit split in the process.

Earlier this month, a three-judge panel for the Eighth Circuit came to the opposite conclusion when it ruled against a Minnesota man who challenged his conviction for unlawful possession of a firearm as a felon with past drug convictions. Rather than attempt to delineate non-violent versus violent felonies in determining who is considered a part of “the people” protected by the Second Amendment as the Third Circuit did, the Eight Circuit panel merely adopted the Supreme Court’s dicta in both Heller and Bruen that suggested felony gun prohibitions were self-evidently lawful.

“Given these assurances by the Supreme Court, and the history that supports them, we conclude that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1),” Judge Steven Colloton, a George W. Bush appointee, wrote in his opinion.

He also expressed practical concerns over what an attempt to remove non-violent felons from those prohibited from owning firearms by federal law would mean. He posited that it would be akin to invalidating that entire prohibited persons provision from the Gun Control Act.

“According to published data, a rule declaring the statute unconstitutional as applied to all but those who have committed ‘violent’ felonies would substantially invalidate the provision enacted by Congress,” he wrote. “The most recent available annual data show that only 18.2 percent of felony convictions in state courts and 3.7 percent of federal felony convictions were for ‘violent offenses.’”

This discrepancy over how to interpret an important federal criminal statute is practically begging the Supreme Court to get involved. That’s especially true considering it is the Supreme Court’s own actions that have created the discrepancy in the first place. Its new Second Amendment test from last year’s Bruen decision gave rise to these cases and, at least in the case of the Range decision, has prompted outcomes that are in tension with the Court’s own statements that felon disarmament laws are presumptively constitutional. It will likely be forced to step in and clarify how broadly lower courts are supposed to construe the relevant American history of disarming certain individuals.

Given that the Range decision called into question the validity of a federal statute, it’s quite likely that the Department of Justice will appeal, giving the High Court its opportunity to hear the case.

In the meantime, the practical implications of the Range decision could be substantial.

Though the Range ruling only applied to the plaintiff and did not wholly invalidate 922(g)(1), it still sets a precedent for all cases within the Third Circuit–which includes Pennsylvania, New Jersey, and Delaware. That means criminal defendants throughout those three states now have an avenue to contest their convictions or appeal to have their gun rights restored and could do so en masse.

It’s a scenario Third Circuit Judge Cheryl Ann Krause warned her colleagues about in her dissenting opinion.

“Our district courts are left without any intelligible standard, and our citizenry will be left reeling from the consequences: a flood of motions to dismiss indictments, appeals, and reversals of § 922(g)(1) convictions; more armed felons and gun violence on our streets; less faith in elected representatives stymied in their efforts to protect the public; and less trust in a judiciary mired in formalism and the usurpation of legislative function,” she wrote.

She concluded that the only solution is for the High Court to weigh in on the question.

“The sooner the Supreme Court takes up this issue, the safer our republic will be,” she said.

Judge Krause could very well get her wish as soon as the next session. The Supreme Court already decided the question of where the Second Amendment applies in both Heller and Bruen (in the home and in public, respectively). It also dipped its toe in the waters of what is protected by the amendment when it said handgun ownership was protected in Heller.

But now, between the competing circuit decisions now on non-violent felonies, the domestic violence restraining order decision from the Fifth Circuit in Rahimi, and a slew of other cases involving felony indictments and drug users, the Supreme Court is likely going to have its hands full deciding who the Second Amendment protects.  

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