The arbitrary nature of the ATF

Just watch....they'll be red flagged by the end of the week. One more chip in the constitution.


Mark

Unfortunately the ATF and most, if not all, government agencies write regulations based on the frequently very nebulous legislation passed by Congress. Consequently, they have the leeway to periodically (right or wrong) reevaluate the “intent” of that legislation and ad, delete or modify previous regulations. Usually based on the political winds or the opinions of the department heads or the current administration.

Well, we could request Trump de-fund the ATF, as a cost saving measure.
Maybe we could get him to defund the TSA , too.

CLP said:

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They did that with the pistol grip stock I think (another novelty imo). Didn't they say it was legal, then say it was only legal as intended to be used and not if shouldered, and then again later stating it could be shouldered?(...)

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Did you mean the SIG arm brace? When you say pistol grip stock, I'm thinking of a rifle stock with a pistol grip; rather than a stock for a pistol.

The root problem is not the ATF, but the underlying law (the NFA). The NFA was flawed legislation to begin with, and subsequent developments (bumpfire stocks, arm braces, binary triggers) have made it even more of a mess. The ATF is in the unenviable position of having to deal with this, since the NFA is still on the books. In a rational world, the NFA would be re-examined legislatively. But the political climate (pro and con) makes that impossible. Even something simple, like removing silencers from its scope, is proving to be too difficult.

People in general are reactive.
Folks that only carry a snub or pocket pistol in areas perceived as "good" when they could carry something bigger.
If incident ever happens in that area (or elsewhere they can relate to) then they react and carry something bigger.

CLP said:

Without discussing the inspiration for this musing, I wonder how common it is that a branch of government can outlaw an item, or otherwise enact or affect laws, by simply issuing a statement/decree.

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US government agencies have wide latitude in the interpretation, application and implementation of US law. That power comes from the US congress through the Administrative Procedures Act.

https://www.archives.gov/federal-register/laws/administrative-procedure/551.html

Don't like the law: Contact your congress critter.

What's to stop them from issuing a subsequent statement modifying or reversing their original one?

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Nothing. They did it before with the Akins accelerator and AW-SIM, both were deemed Ok, then after a number were sold the ATF changed their position.

The only difference in operation between either of them and the slide fire stock is that they used a spring and the slide fire uses force the shooter imparts. The spring is what they subsequently decided turned them into machine guns.

CLP wrote:
I wonder how common it is that a branch of government can outlaw an item...

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Please post this in the legal section so that the attorneys can explain to you how the regulatory process works.

In general - agencies which Congress has devolved regulatory power also have rules which they are governed by, and which somewhat control their procedures and decision making.

It's not just the ATF, it's DOT, EPA, ad nauseum. And they are directed by a current Administration in office on various subjects. In the case of State, they directed newer interpretations of ITAR to restrict and suppress specific details and knowledge of weapons and their fabrication. It was intended to restrict the "ghost gunner" home machining of 80% lowers among other things by tying up the transmission of program code.

One interpretation is the government "owns" all the proprietary knowledge of firearms and you can't. The original purpose was to keep foreign agents from gaining information about weapons systems to their betterment. One has to ask since there are plants overseas cranking out G3's in Pakistan, much less AK's everywhere, what difference does it make now?

Not very much.

Given that agencies are required to go thru a somewhat public process which does impose a comment period to impress the agency of alternate views, and we do have the courts in which to contest the final interpretation, in a legal sense our rights are protected.

Reality does intrude, tho, as the expense of one citizen contesting the regulation is immense and a disincentive. So, we band together in an organized way to protest the (stupid) decisions and reverse them. If you want to see our rights protected, you join. If not, expect the volunteerism and donations of others to do it, and be grateful. They, at least, are doing something, which is a whole bunch better than a lot of posters (on other forums) who don't do anything except complain.

You can at least take a new shooter out on Sundays now since our fall season is no longer occupied watching TV. Absent any real control over the legislative and regulatory mess, the liberals are attempting to take away football. We should take advantage of it and practice.

CLP said:

Without discussing the inspiration for this musing, I wonder how common it is that a branch of government can outlaw an item, or otherwise enact or affect laws, by simply issuing a statement/decree.

I don't own a bump fire stock, but I have shot a rifle using one. Briefly fun, it's nothing more than an expensive novelty imo. However, my understanding is that the ATF issued a statement saying that it was legal to own and use as intended (or at least wasn't illegal in any way).

What's to stop them from issuing a subsequent statement modifying or reversing their original one?

They did that with the pistol grip stock I think (another novelty imo). Didn't they say it was legal, then say it was only legal as intended to be used and not if shouldered, and then again later stating it could be shouldered?

Any recourse for people who've purchased these things if the ATF decides that they're "machine guns" after all?

Novelty it may be, one couldn't help but think that this item would be absent on the radar of gun control advocates until it was used in a significant crime. I'd hate to think they'd just arbitrarily ban them, as if that's going to improve anything...

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There is a case named Chevron v. N.R.D.C., 467 U.S. 837, (1984) that established the current judicial deference to administrative agencies on technical questions such as whether a permit under the Clean Air Act for a stationary source of pollution can be interpreted as a per piece of equipment or as a total cap on emissions (bubble) of a manufacturing plant. The Court ruled because of technical expertise that the courts do not have, it makes sense to defer to administrative agencies when those agencies are implementing laws that have technical aspects (no deference on issues that do not address technical questions). So unless the plaintiff/defendant demonstrates that the agency's interpretation of congressional language was unreasonable or contrary to the intent of Congress in its reading of the statute, then the agency's interpretation of technical questions like "what is a machine gun" will be regarded by the courts as authoritative.

BTW, a lot of ATF rulings are what is called informal agency actions--issuing letters, etc. which is how bumpfire and similar stocks were approved. However, the ATF also has full rulemaking power that can issue binding regulations and can change its interpretation of the law such as the issue several years ago of 62 gr. 5.56 ammo with steel tips not being for a "sporting purpose". It gets complicated on judicial review in these cases as courts have went different ways how to tell a "substantive" change that requires notice and comment under the APA or simply an "interpretative" change in the law which does not require notice and comment but can require formal rulemaking. Usually, judicial deference is less for informal agency actions unless they deal with a technical question like "what is like a machine gun". My best guess is that the courts would defer to the ATF on whether bumpfire type stocks could or could not be construed as a "machine gun" if someone tried to litigate the change in ATF interpretation.

FWIW, Justice Gorsuch opposes Chevron type deference, and its guidance as precedent has been eroded over time by other decisions. Depending on who is appointed to the court, this area of the law might change pretty suddenly.

Ok, moved to Legal because it is specifically a legal question relating to how ATF gets to make "arbitrary" decisions.

Others have answered this quite well, but to reiterate: Congress passes a law that lays out very serious -- but very general -- rules for how a matter should be handled. Gun law, tax law, environmental law, etc.

That law may be long and seem complex, but that's NOTHING compared to how long and complex it would have to be to describe in detail exactly how every possible permutation of that matter might be handled. Many questions are going to arise. Many concepts, items, methods, and constructs are going to have to be defined. And new angles and products, and possibilities are going to arise frequently which play right along the borders which once seemed perfectly clear.

To the regulatory agencies are delegated the ability and duty to regulate. That is, to define and decide how the overall law will apply to very specific questions. Sometimes, as is the case with the NFA, the enacted form of the original law had some large flaws, and 83 years of technology advances have rendered many parts of it highly questionable or conflicting. But the ATF still has to figure out ways to enforce it which are as aligned as possible with the text in the statute. Sometimes their decisions are logically correct but laughable in practical terms. (Like the shoelace ruling.) Sometimes they come up with a ruling and then have to correct or amend or reverse it due to Court decisions (the Thompson case, for example) or when practicality shows they have an unenforceable mess on their hands (like with the Sig brace).

If you read ATF rules and regulations and actually deal with the ATF itself, you'll find that they're usually far from arbitrary. Most of their rulings and determinations are based on logic and are fairly well thought out. The problem, as others have pointed out, is with the laws they're tasked with enforcing.

Take the SIG brace issue. That's an issue that has no cut-and-dried answer if you simply read the actual text of the NFA. The brace officially wasn't designed as a stock, but in reality it was almost universally used as a stock. Yes, their various positions on the SIG brace sometimes contradicted each other, but none were arbitrary, they were simply different people having different interpretations of a law that wasn't written to deal with this specific situation.

Sam brought up the shoelace example and he was spot on: On its face, many people use that as an example of the ridiculousness of the ATF. But if you actually read the federal definition of "machine gun", it's not a ridiculous opinion at all: That shoelace was what converted the firearm to fire full-auto. And federal law says that the parts used to make a firearm full-auto are considered machine guns.

I'm not saying I agree with everything the ATF does or says, and I'm also not saying all of their opinions make complete sense to me, I'm simply pointing out that they don't tend to make things up arbitrarily like popular myth would have you believe.

I've said before that I actually have a degree of pity for the ATF Tech Branch because their job in trying to apply the NFA to the firearms world today must be utterly maddening. And being saddled with trying to administer a law that (because handguns were removed from its purview before passage) really makes no logical sense must be a little humiliating.

The ATF, like all federal administrative agencies, has at least three levels of action by which it can interpret the law which it is charged to administer:

1. Regulations. These have the broadest application and are the most time-consuming to implement. They first have to be published in proposed form in the Federal Register, there must be a public comment period, the comments must be carefully considered, and, when finalized, they become part of the Code of Federal Regulations (CFR) which practically has the force of law.
2. Published Rulings. The procedure for these is much more streamlined, but they have narrow application (a case has to fit the specific facts in the Ruling).
3. Private (letter) rulings. These are issued when either individuals or government agents have specific questions. They apply only to the specific persons and situations involved, and cannot be used as precedent. If the agency considers that a private ruling should have more general application it can publish it in its Bulletin and then it becomes a Published Ruling.

The only difference in operation between either of them and the slide fire stock is that they used a spring and the slide fire uses force the shooter imparts. The spring is what they subsequently decided turned them into machine guns

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Precisely what the ATF used to justify the reversal. The spring in the previously mentioned Akins and the other device were decreed to fun afoul of the NFA as it mechanically assisted in making the firearm go full auto (kind of). Even then, if you turned the spring in to the ATF the device was deemed legal.

I don't know that the ATF will be able to use a regulation or ruling to ban slidefire stocks because of the definition of machine gun in the NFA (more than one round with one trigger pull). The argument used in the Akins Accelerator ruling (in that it used a mechanical assist to aid in full auto fire) is tenuous but possible. The rifle's response was more or less automatic and did not rely on force imparted by the shooter. I don't believe it is even possible to issue a ruling to ban slidefire without running afoul of the law.

It may be of value to point out that the ATF redefining "machine gun" to include a device like a Slidefire stock is probably not the most likely avenue of restrictions on those items.

Congress (and the state congresses) can pass laws that are separate entirely from the NFA. Congress, unlike the ATF who merely regulates based on existing law, can write a new law out of whole cloth without necessarily referencing any law that came before.

Of course, just as the ATF's interpretation of an existing law can be challenged through the courts system by anyone (with lawyers and money) who is convicted under that interpretation, a new law written by Congress would be so as well. That challenge may actually be harder to sustain as instead of arguing that a ruling doesn't line up with the text of the NFA (which wouldn't be terribly hard to show) it would eventually have to depend on the Court ruling that bumpfire stocks are protected by the 2nd Amendment, which is not a guaranteed success ... even in the case of actual firearm which are in very wide use.

Sam1911 said:

Others have answered this quite well, but to reiterate: Congress passes a law that lays out very serious -- but very general -- rules for how a matter should be handled. Gun law, tax law, environmental law, etc.

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To elaborate further in order to gain support from various factions in Congress compromises and exceptions are usually written into the bill to gain enough support for passage.

As the saying goes "The Devil is in the Details." When a bill is rushed through Congress it often is poorly written and defined. The Affordable Care Act or "Obamacare" is a prime example. It was rushed through Congress so fast that Senators were told not to bother reading it but just vote for it. As we are seeing it has serious shortcomings on paying of premiums with several insurance companies pulling out of it altogether. It is left to the regulatory agency to try to figure out what Congress intended and to make it work.

This exactly why any bill banning "bump fire stocks" needs to oppose until 2018. There is simply not enough time for Congress Committee hearings and a review by the Attorney General to determine what the wording in the bill will ban and whether it will pass muster in Court. The anti's know this and want to rush the bill through before emotions have a chance to cool down and the details of the bill are made known.