1st Challenge to Obama's gun orders hits court

[Elkins45]

Some people just love drama.

"The sky is falling!"

While my personal belief is that President Obama would happily take away all of your handguns and magazine fed rifles, he simply is powerless to do so without the cooperation of the Legislative (and eventually Judicial) branch.

I have taken to asking people for a link to the text of Obama's executive order. When they can't Google one up for me then they start learning something.

 

[RetiredUSNChief]

Probably the best positive outcome of Obama's "Actions" will be the transfer of even MORE firearms and ammunition into the hands of civilians as a direct result.

A pretty good public response to his actions, I'd say.

 

[Frank Ettin]

...The problem is the BATFE and the Justice Dept. believing that they can do anything they want because Obama said it's OK for them to "define" anything any way they want.

Phooey!

Exactly where did Obama say anything remotely like that?

 

[MEHavey]

Originally Posted by Drail
...The problem is the BATFE and the Justice Dept. believing
that they can do anything they want because Obama said it's
OK for them to "define" anything any way they want.

Phooey!
Exactly where did Obama say anything remotely like that?

Frank, his Attorney General has already set the boundary condition,
stating that as little as a single transaction can trigger the "business"
reqm't to force a Background Check.

In politics (and increasingly in the regulatory "interpretation" of Law)
"Commander's Intent" is the guiding principle.

 

[Frank Ettin]

....Frank, his Attorney General has already set the boundary condition,
stating that as little as a single transaction can trigger the "business"
reqm't to force a Background Check....

Let's see exact and documented quotes. Let's see actual results.

 

[JSH1]

Frank, his Attorney General has already set the boundary condition,
stating that as little as a single transaction can trigger the "business"
reqm't to force a Background Check.

In politics (and increasingly in the regulatory "interpretation" of Law)
"Commander's Intent" is the guiding principle.

The ATF published this handy guide the week the president made his speech: https://www.atf.gov/file/100871/download

I believe you are referring to this statement:
"Courts have identified several factors relevant to determining on which side of that line your activities may fall, including: whether you represent yourself as a dealer in firearms; whether you are repetitively buying and selling firearms; the circumstances under which you are selling firearms; and whether you are looking to make a profit. Note that while quantity and frequency of sales are relevant indicators, courts have upheld convictions for dealing without a license when as few as two firearms were sold, or when only one or two transactions took place, when other factors were also present."

Notice it says "courts have upheld convictions". This is nothing new, the difference between dealing without a license or not is the intent of the sale not the number.

 

[MEHavey]

January 4, 2016 7:30 pm
http://freebeacon.com/issues/obama-...ven-a-single-firearm-become-licensed-dealers/

The Obama administration announced during a conference call with reporters Monday evening that the president’s upcoming executive order may require somebody selling even a single firearm to obtain a Federal Firearms License.

During the call White House Press Secretary Josh Earnest, White House Senior Adviser Valerie Jarrett, and Attorney General Loretta Lynch explained the details of the order, which will be announced publicly by President Obama Tuesday at 11:40 a.m. The action, officials explained, would include guidance on how the Bureau of Alcohol, Tobacco, Firearms, and Explosives will now determine who is “engaged in the business” of selling firearms under federal law and, therefore, who is required to obtain a license to sell firearms.

> Jarret then said that selling as few as “two firearms” could
> require somebody to obtain a federal firearms license.
> However, later in the call, Attorney General Lynch revised
> that number down further. “It can be as few as one or two
> depending upon the circumstances under which the person
> sells the gun,” Lynch said."

Now lawyers may twitter all day as to the "viability" of such statements. But as before, "command intent" is clear.
Ordinary people proceed at their own peril, and very much in the dark.

... which was/is the intent.

 

[JSH1]

You didn't read the ATF guideline did you?

 

[Frank Ettin]

...During the call White House Press Secretary Josh Earnest, White House Senior Adviser Valerie Jarrett, and Attorney General Loretta Lynch explained the details of the order, which will be announced publicly by President Obama Tuesday at 11:40 a.m. The action, officials explained, would include guidance on how the Bureau of Alcohol, Tobacco, Firearms, and Explosives will now determine who is “engaged in the business” of selling firearms under federal law and, therefore, who is required to obtain a license to sell firearms.

> Jarret then said that selling as few as “two firearms” could
> require somebody to obtain a federal firearms license.
> However, later in the call, Attorney General Lynch revised
> that number down further. “It can be as few as one or two
> depending upon the circumstances under which the person
> sells the gun,” Lynch said."....

In other words, you don't understand what is being said and you are misinterpreting what is being said to suit your prejudices.

Going back to --

1. what Drail wrote in post 25:

   ...The problem is the BATFE and the Justice Dept. believing that they can do anything they want because Obama said it's OK for them to "define" anything any way they want....

   
   
2. what I wrote in post 28:

   ...Exactly where did Obama say anything remotely like that?

   
   
3. and what you wrote in post 29:

   Frank, his Attorney General has already set the boundary condition, stating that as little as a single transaction can trigger the "business" reqm't to force a Background Check.

You're clearly not paying attention. There is nothing there about defining anything any way the ATF (or Justice Department wants. What was actually said, quoting from the article you linked to (emphasis added):

...“ATF will make clear that whether you are ‘engaged in the business’ depends on the facts and circumstances,” Jarrett said. “On factors such as: whether you represent yourself as a dealer, such as making business cards or taking credit card statements. Whether you sell firearms shortly after they’re acquired or whether you buy or sell in the original packaging.”

“Numbers are relevant. The ATF and DOJ did not identify a magic number of weapons that makes you engaged in the business because that would limit their ability to bring prosecution.”

Jarret then said that selling as few as “two firearms” could require somebody to obtain a federal firearms license. However, later in the call, Attorney General Lynch revised that number down further. “It can be as few as one or two depending upon the circumstances under which the person sells the gun,” Lynch said....

There is nothing in any of those comments (or the pamphlet JSH1 linked to post 31) to support the notion that ATF or Justice is going to be "defining things any way they want."

Indeed as discussed in this thread of three years ago, there is no "magic" number of transactions which cause one to be engaged in the business of a dealer in firearms. Court decisions cited in that thread make it clear that a number of factors must be considered with the number of transaction being only one of those factors.

So you really need to learn to get your facts straight.

 

[Metal God]

I hate to jump in here after being slapped down earlier but I feel it should be noted .

It appears some think that prior court decisions effect how the current administration evaluates the law . I believe there is plenty of evidence that they use selective awareness of the law and past precedent when determining how to get what they want . Isn't this the same administration that lied to a judge claiming a reporter was a "co-conspirator" citing the Espionage Act during its investigation into the 2009 North Korea intelligence leak . In order to seize work as well as personal emails and phone records including his parents records . This was a "reporter" . It's what they do . They ask people in the know for info . They do not become criminals if someone illegally gives said info to them .

Why would we think this will be any different then all the other things they've done only to have it over turned by the courts later . ( or in at least one case should have been , it was never a "tax" )

Some may feel the evidence is not there . I believe the reputation this administration has earned is enough for me to infer some things

Is this the "general" gun discussion sub forum or what ?? It seems to resemble a court room more with a judge presiding then a "general" discussion of a topic .

 

[Frank Ettin]

...It appears some think that prior court decisions effect how the current administration evaluates the law . I believe there is plenty of evidence that they use selective awareness of the law and past precedent when determining how to get what they want ....

How the current administration, or any administration, consider court decision is beside the point.The courts do consider prior court decisions, and actions by the administration which wind up the subject of litigation will be evaluated by the courts in light of prior court decisions.

The result of that basic reality is that the administration's legal advisers will be considering prior court decision when advising the administration on these matters.

...I believe there is plenty of evidence that they use selective awareness of the law and past precedent when determining how to get what they want....

Your beliefs don't mean anything. Find the evidence, and share it with us.

....It seems to resemble a court room more with a judge presiding then a "general" discussion of a topic...

It might be "general discussion." It is not the fairy tale discussion forum. It's one thing to discuss facts and reality. It's another to discuss guesses and fantasies.

 

[Metal God]

Your beliefs don't mean anything. Find the evidence, and share it with us.

I did ,

James Rosen

Individual mandate

How about
Fast & furious

I'd also like to add that absence of evidence is not evidence of absence .

 

[Frank Ettin]

Your beliefs don't mean anything. Find the evidence, and share it with us.

I did ,

James Rosen

Fast & furious

Individual mandate

That's not evidence nor an argument. Those are just words thrown together.

 

[Frank Ettin]

I'd also like to add that absence of evidence is not evidence of absence .

True enough, but it does nothing to support your thesis.

 

[Frank Ettin]

Let's try an overview of where we are:

1. We know that the current administration, and its core constituency, is no friend to the RKBA. But chasing our tails isn't going to help us deal with what's going on.
   
   
2. There is often disagreement about the legality of things Presidents do, or thing agencies in the Executive Branch do. Those sorts of disagreements frequently wind up in court. That's what courts do. Each matter coming up in court is a separate matter, and the fact that the administration winds up in court on one matter, and wins or loses on that matter, really doesn't have much to do with any other matter.
   
   
3. If we think something the administration is doing, or is going to do, is illegal, we need to be able to state goods grounds for that opinion based on real legal principles. It's not illegal just because we don't like it or because we think it's a bad idea.
   
   
4. Something the administration is doing or is going to do might be legal, but we might still think it's a bad idea. If you want to challenge the action, we need to be able to describe effectively why it is a bad idea.
   
   
5. But so far, the administration really hasn't actually done much of anything -- except engage in some political theater to entertain supporters. ATF has published a pamphlet essentially explaining current law on dealing in firearms without a license as we as some new final rules on NFA trusts. Whether these actions are subject to challenge, either as illegal or as bad policy, is a question which, since something actually has been done, might be worth thinking about.
   
   
6. But beyond those, it seems that nothing is as yet actually being done about the "executive actions" now on the table. Without anything concrete to look at, we reduced to pretty much cahsing our tails.

 

[Tirod]

"Upcoming Executive Order" remains to be seen. The Orchestrated Release of Suggestions and Tears was about it.

Does the ATF come up with interpretations and enforcement as they see fit? Are they in the thrall of the liberals who direct their every new trespass? Nope, there are two things being conveniently ignored here: First, CONGRESS authorized them to pursue interpreting and writing regulation just the same as the EPA and DOT - and also empowered them to enforce those regulations once read into the public record thru the required process.

This has been going in for decades - long before the current President was even out of high school. It's either ignorance or a deliberate exercise in duplicity to keep pointing out "they can do anything they want or the POTUS tells them!" when in fact, Congress authorized it.

Goes to 2), They CAN do anything they want - within reason. They ARE both writing regulations and then enforcing them as Law. And they do buck the President on certain issues - because they point out they simply can't violate the law and will lose in court.

Same as the President writing EO's - sure, he can try, but he'd rile up a lot of people, who would go out of their way to disturb their Congressmen with an urgent new issue, who nearly always line up at a chance of smacking down another Branch of Government. Same as the Courts.

The ATF has lost cases, and Congress almost routinely passes Law that "corrects" a drift in regulatory language when they get out of line. Congress corrected the anti gunners from suing firearms makers with the Lawful Commerce Act and its why they are now targeting it. Since it's based on standard law for any business it won't be easy to take down - and the Congress that passed it is also even more influenced by gun owners today than in the past.

What we have is a bureaucracy empowered by Congress to tell us what we can and can't do with guns, based on the laws that Congress is forced to pass by us. Congress doesn't like getting into the minutiae of law and set up the Agencies to keep up with new technology and new twists in how it's applied. Otherwise there would actually be a state of serious deadlock as Congress creatures study the studies studying the research and science, accounting, and politics of every line of regulation to ever be accepted. Do they vote up or down for the Ozark Shiner, is a Brace a Brace or a stock?

Once they decide things tend to stay that way for a long time, even when they are wrong. Like, the AWB. We don't have to like regulation, but it's actually easier to influence - and required for them to appreciate - than change a Congress who has already laid their reputation on the line for a decision. They prefer to be considered intelligent, learned, and to have gravitas. Well, we know different. Same for those raised up in the bureaucracy, which is deliberately set up to promote self promoters over those who do good work. Most human organizations do that, and it's not much different than observed behavior in baboon troops. The dominant male bullies everybody and mates with whom he pleases.

Of course, it wasn't like this at one time, but we let the Alpha males "kill" off God in 1963 to allow us to do as we please rather than be subject to groups where they aren't in charge. Be careful what you ask for.

Point being, there are three Branches of Government, it's still working, and it's the ones who lack a lot of education and patience to think past the latest news cycle who cry wolf all the time. Big picture? 30 years ago I couldn't carry concealed, and owning a 99% SBR that skirted the NFA wasn't even an option. Today, I can Open Carry an AR pistol loaded in the streets legally.

No, I don't see them coming up with new innovative ways to restrict my 2A rights much at all. But I certainly won't say the Chicken Little's need to take a chill pill - you do very much keep us apprised of new developments and aren't afraid to sound the alarms. We just know that most of the time it's actually misguided and useless - but excuse it for the rare and serious issues that do come up.

Keep up the good work.

 

[giggitygiggity]

While I agree with the guy, I don't think he has much of a chance of winning the case.

I have no faith in our legal system any more. When the Supreme Court says that it's cool for people to wear whatever war medals they want, it's pretty clear that those in the legal system basically throw darts and whatever the dart hits, they go with.

Ok, you say people can wear medals that they don't own, can I practice law even though I didn't pass the bar exam and earn a JD? Can I call myself "Doctor" and practice medicine even though I don't have my MD or DO? I don't see why not since the Supreme Court says it's ok for people to pretend to be heroes even though they're not.

I know it's vaguely related, but my point is that there's no predicting what in the world the legal system will do with suits regardless of their validity. I also needed to vent. Haha.

 

[Frank Ettin]

...When the Supreme Court says that it's cool for people to wear whatever war medals they want, it's pretty clear that those in the legal system basically throw darts and whatever the dart hits, they go with.

Ok, you say people can wear medals that they don't own, can I practice law even though I didn't pass the bar exam and earn a JD? Can I call myself "Doctor" and practice medicine even though I don't have my MD or DO? I don't see why not since the Supreme Court says it's ok for people to pretend to be heroes even though they're not.

I know it's vaguely related,....

Not only is it not even vaguely related, it's not even vaguely true.

That's not particularly close to what the Supreme Court said in U. S. v. Alvarez, 567 U. S. ____ (2012), and absolutely nothing in that opinion could call into question rules against practicing law without a necessary license or holding oneself out to be a physician without the proper credentials.