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.
BUT ---- Now as of January 2025 when a new administration took the helm, some of these unconstitutional restrictions have been curtailed and a leash has been put on the ATF in one form or another. There are still some questions that must be answered and some "rules" that have to be defined more clearly. We hope this will take place in the near future.
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
Repeal of the "Zero Tolerance" Policy: This policy, introduced during the Biden administration, had set strict criteria for compliance inspections of firearm licensees, leading to increased revocations of federal firearms licenses (FFLs). The Trump administration repealed this policy, citing concerns that it unfairly targeted law-abiding gun owners and created undue burdens.
Review of Stabilizing Brace Regulations: The ATF began revisiting the rule that classified firearms with stabilizing braces as short-barreled rifles, which are subject to stricter regulations. This review aimed to address concerns about the clarity and fairness of the rule.
Changes to the Definition of "Engaged in the Business": The administration also reviewed the rule defining who is considered "engaged in the business" of selling firearms. This was part of a broader effort to ensure that regulations were not overly restrictive for private gun owners.
Leadership Changes: There were significant leadership shifts within the ATF, including the replacement of Kash Patel as acting director. These changes were part of broader administrative adjustments during the Trump era.
These actions reflect a focus on reducing regulatory burdens and emphasizing Second Amendment rights.
From "The Reload.com"
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.