ATF changes law on long barreled pistol

Status
Not open for further replies.
bdickens said:
No Federal agency - ATF or not - can change a law. Only the legislature can do that.
Click to expand...
I hope you are being sarcastic? Problem we often run into is a LOT of "gun people" think that is how it is. The BATF can change anything, any time they want. The "rules" they come up with have the same force as "laws". Sure people can take them to court and try to get a black robe to change it. Black robes supposedly can not make law either yet they do it daily.
 
bdickens said:
No Federal agency - ATF or not - can change a law. Only the legislature can do that.
Click to expand...

bdickens said:
Really? Did you fail Jr. High civics or something?

That's just basic stuff right there.
Click to expand...

That's how it's supposed to work. And, yes, it is basic stuff. But federal agencies have tremendous authority wielded by unelected bureaucrat functionaries who are unaccountable to the citizenry. These agencies have the power, by their rule making and interpretation abilities, to seemingly circumvent the law and the Constitution. In point of fact, they are using the Necessary and Proper clause and the Commerce clause in Article I Section 8. Congress has the power to enact laws, so it is an implied power that they can enact laws to help enforce/carry out those laws. This is where Congress gets most of its power from. If it were limited to just the 18 enumerated powers in Article I, we would have an extremely small government.

For example: Guns are sold across state lines, so they can be regulated under the Commerce Clause. If guns can be regulated, then it is Necessary and Proper for Congress to enact laws (creation of the ATF) for the enforcement/carrying out of those regulation. By extension, how ATF (absent a directive from the executive branch or a ruling from the judicial branch) interprets those laws is valid. They have a lot of discretion. Remember when they were going "interpret" that M855 ammo was AP and therefor illegal? Every federal agency has this discrepancy. And it works both ways, too. For example, they also, for some unfathomable reason, interpret the Shockwave to not be a SBS and therefor it is legal. Hard to believe that I can buy a shockwave that is legal, but if I cut the barrel and stock of my vintage Model 24 shotgun it is somehow illegal. Or pistol braces on AR pistols? How are those legal? How are those not a SBR? Nowhere is it written that their interpretations must be logical of defensible.
 
bdickens said:
Really? Did you fail Jr. High civics or something?

That's just basic stuff right there.
Click to expand...
Sadly you are either trying to be funny, or woefully ignorant of how it works. Sadly a LOT of gun owners chose to remain woefully ignorant of how this all works. Feds change "rules" all the time. If you end up on the wrong side of some new "rule" you have fun telling the Judge that they never took Civics class. While you sit in jail shaking your head wondering what just happened <shrug>
 
bdickens said:
So when you get arrested, do you get charged with breaking "ATF rule whatever whatever" or do you get charged with violating the law on possessing an unregistered AOW?
Click to expand...
I think its "tax evasion" they charge you with, for failing to pay for your stamp.
Edit: I didn't mean this seriously... keeping it up for context
 
Last edited:
bdickens said:
No Federal agency - ATF or not - can change a law. Only the legislature can do that.
Click to expand...
That's a true statement, for the most part, but it's also irrelevant to this specific discussion. The laws passed by the Legislative Branch are enforced by the Executive Branch. Commonly, the Legislative Branch will craft laws to either pass authority for regulation of an issue whole-cloth to the Executive Branch, or the words in the law will contain significant room for interpretation by the Executive Branch.

For example, the Legislative Branch passed the GCA'68, which says (in part) that the anyone in the business of selling firearms must be licensed and regulated by the Federal Government. But 18 USC 923 does not define what it means to be 'in the business' of selling firearms. As a result, the ATF defines 'in the business' via regulation, and we're stuck with the interpretation / regulation until it's successfully challenged in court / the ATF changes it again / Congress adds a definition / test to the law.

As another example - in 2011 the ATF issued an 'emergency' regulation (still in force, nine years later) that required Type 1/2 dealers to provide notification to the F Troop for every instance of multiple semiauto rifle/pistol sales (two or more, within five (5) consecutive days). There is no single sentence in 18 USC 923 that allows / requires this. The F Troop issued the regulation, under the force of law, by declaring this new process to be part of the scope of 18 USC 923. If you don't like it, you have to find the premise under which you challenge this authority in Federal court. Until then, it's the law of the land - not explicitly, but as a regulatory extension of 18 USC 923. If you violate this regulation, you are charged with a violation of 18 USC 923.

As a final example - several years back, the F Troop issued a regulatory change that reclassified specific types of gunsmithing as manufacturing. This was intended to force a broad swath of gunsmiths to apply for / obtain a Type 07 FFL. Since 18 USC 923 contains no specific test for what constitutes a manufacturer, this was a regulatory change that was invented by bureaucrats in DC and used the broad scope of 18 USC 923 as its legal foundation.

That's how the Government works - regulations are derived from legislation, and as such can be / are altered without necessarily being required to ask Legislative permission.
 
Last edited:
mjsdwash said:
I think its "tax evasion" they charge you with, for failing to pay for your stamp.
Click to expand...
Why do you think that? Do you have any evidence to support that claim? In fact, you obviously didn't do any research and just made that up.

See, for example, U.S. v. Dougherty, Crim. No. 00-425 (WGB) (D. N.J. 4/23/2002) (D. N.J. 2002), slip op at 1:
...On March 22, 2000 Defendant was arrested and found in possession of "a firearm, namely a destructive device in the form of a glass bottle containing a flammable liquid, more commonly known as a " ;Molotov Cocktail." Indictment. The device was not registered to him in the National Firearms Registration and transfer Record as required by Chapter 53, Title 26 of the United States Code. Id. Based upon these facts, on or about June 23 2000, a grand jury sitting in Newark, New Jersey, returned a one-count indictment, charging Defendant with knowingly possessing an unregistered firearm, namely, a Molotov cocktail, in violation of the National Firearms Act, 26 U.S.C. § 5801, et seq. ("NFA")....
Click to expand...

See also, U.S. v. Grier, 354 F.3d 210 (3rd Cir. 2003), at 212:
...A federal grand jury indicted Grier, Lewis, and Middleton with conspiracy to possess, transfer and make machine guns in violation of 26 U.S.C. §§ 5861(c), (e), and (f); three counts of making firearms in violation of 26 U.S.C. § 5861(f); two counts of possessing firearms in violation of 26 U.S.C. § 5861(c); three counts of transferring firearms in violation of 26 U.S.C. § 5861(e); and one count of possessing firearms by a convicted felon in violation of 18 U.S.C. § 922(g)(1).....
Click to expand...

So NFA indictments will charge the specific NFA statutes the grand jury decides were violated.
 
The ignorance on display here I think accounts for all the perseverating about "if so-and-so gets elected President, he's gonna pass a law...."
 
rbernie said:
...the Legislative Branch passed the GCA'68, which says (in part) that the anyone in the business of selling firearms must be licensed and regulated by the Federal Government. But 18 USC 923 does not define what it means to be 'in the business' of selling firearms. As a result, the ATF defines 'in the business' via regulation, and we're stuck with the interpretation / regulation until it's successfully challenged in court / the ATF changes it again / Congress adds a definition / test to the law.....
Click to expand...

I'm sorry, but that's not entirely accurate. In fact Congress defined "engaged in the business" by statute (18 USC 921(a)(21)):
(21) The term "engaged in the business" means-

(A) as applied to a manufacturer of firearms, a person who devotes time, attention, and labor to manufacturing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the firearms manufactured;

(B) as applied to a manufacturer of ammunition, a person who devotes time, attention, and labor to manufacturing ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the ammunition manufactured;

(C) as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms;

(D) as applied to a dealer in firearms, as defined in section 921(a)(11)(B), a person who devotes time, attention, and labor to engaging in such activity as a regular course of trade or business with the principal objective of livelihood and profit, but such term shall not include a person who makes occasional repairs of firearms, or who occasionally fits special barrels, stocks, or trigger mechanisms to firearms;

(E) as applied to an importer of firearms, a person who devotes time, attention, and labor to importing firearms as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the firearms imported; and

(F) as applied to an importer of ammunition, a person who devotes time, attention, and labor to importing ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of the ammunition imported.
Click to expand...

rbernie said:
.... As another example - in 2011 the ATF issued an 'emergency' regulation (still in force, nine years later) that required Type 1/2 dealers to provide notification to the F Troop for every instance of multiple semiauto rifle/pistol sales (two or more, within five (5) consecutive days). There is no single sentence in 18 USC 923 that allows / requires this. ...
Click to expand...

And that's not entirely accurate either. See 18 USC 923(g)(3)(A):
... (A) Each licensee shall prepare a report of multiple sales or other dispositions whenever the licensee sells or otherwise disposes of, at one time or during any five consecutive business days, two or more pistols, or revolvers, or any combination of pistols and revolvers totalling two or more, to an unlicensed person. The report shall be prepared on a form specified by the Attorney General and forwarded to the office specified thereon and to the department of State police or State law enforcement agency of the State or local law enforcement agency of the local jurisdiction in which the sale or other disposition took place, not later than the close of business on the day that the multiple sale or other disposition occurs....
Click to expand...
 
Frank Ettin said:
I'm sorry, but that's not entirely accurate. In fact Congress defined "engaged in the business" by statute (18 USC 921(a)(21)):
Click to expand...
What is the definition of 'regular course of trade' and 'principal objective' in the statute? As far as I know, there is none (and is subject to regulatory interpretation).

Frank Ettin said:
And that's not entirely accurate either. See 18 USC 923(g)(3)(A):
Click to expand...
Very good - thanks for the clarification. That'll teach me to link to the current code without re-reading it. :)
 
Last edited:
rbernie said: .... As another example - in 2011 the ATF issued an 'emergency' regulation (still in force, nine years later) that required Type 1/2 dealers to provide notification to the F Troop for every instance of multiple semiauto rifle/pistol sales (two or more, within five (5) consecutive days). There is no single sentence in 18 USC 923 that allows / requires this. ...
Click to expand...


Frank Ettin said:
And that's not entirely accurate either. See 18 USC 923(g)(3)(A):
... (A) Each licensee shall prepare a report of multiple sales or other dispositions whenever the licensee sells or otherwise disposes of, at one time or during any five consecutive business days, two or more pistols, or revolvers, or any combination of pistols and revolvers totalling two or more, to an unlicensed person. The report shall be prepared on a form specified by the Attorney General and forwarded to the office specified thereon and to the department of State police or State law enforcement agency of the State or local law enforcement agency of the local jurisdiction in which the sale or other disposition took place, not later than the close of business on the day that the multiple sale or other disposition occurs....
Click to expand...
Click to expand...
And thats not entirely accurate either.......;)
What rbernie is referring to is the 2011 ATF requirement for licensed dealers in CA, AZ, NM & TX to report the multiple sales of "certain rifles" (semiautomatic, centerfire, caliber greater than .22, that accept a detachable magazine)
Unlike the required reporting for the multiple sale of handguns in 18USC923(g)(3)(A)........rifles aren't mentioned. Instead ATF got creative, claiming its authority to require such reporting came from 18 USC 923(g)(5)(A).



Multiple Sale of Certain Rifle form: https://www.atf.gov/firearms/docs/f...ition-certain-rifles-atf-form-331012/download[/QUOTE]
 
rbernie said:
What is the definition of 'principal objective' in the statute? As far as I know, there is none.....
Click to expand...
See 18 USC 921(a)(22)

rbernie said:
...Very good - thanks for the clarification. That'll teach me to link to the current code without re-reading it. :) My understanding is that this text was not part of the GCA68. I know that this is a rabbit hole, but I have to ask anyway - is there a way to trace when that was added?
Click to expand...

It can be done. How to go about it depends in part on what resources you have available, and it can be a bit tedious.

For example, you linked to 18 USC 923 on the Cornell Law School Legal Information Institute site. If you scroll to the bottom of the page you'll see a list of all bills which amended the statute, but you would need to look at the bills (linked to on the site) to see if a particular bill effected a particular change. Some of the bills are long and deal with multiple subjects.

Other resources, like Westlaw, can make the job easier; but Westlaw requires a paid subscription.
 
dogtown tom said:
...What rbernie is referring to is the 2011 ATF requirement for licensed dealers in CA, AZ, NM & TX to report the multiple sales of "certain rifles" (semiautomatic, centerfire, caliber greater than .22, that accept a detachable magazine)
Unlike the required reporting for the multiple sale of handguns in 18USC923(g)(3)(A)........rifles aren't mentioned. Instead ATF got creative, claiming its authority to require such reporting came from 18 USC 923(g)(5)(A).

Multiple Sale of Certain Rifle form: https://www.atf.gov/firearms/docs/f...ition-certain-rifles-atf-form-331012/download
Click to expand...

Good point regarding reporting multiple rifle sales, but a judge might very well agree that 18 USC 923(g)(5)(A) covers it:
... (A) Each licensee shall, when required by letter issued by the Attorney General, and until notified to the contrary in writing by the Attorney General, submit on a form specified by the Attorney General, for periods and at the times specified in such letter, all record information required to be kept by this chapter or such lesser record information as the Attorney General in such letter may specify.....
Click to expand...
 
D.B. Cooper said:
...federal agencies have tremendous authority wielded by unelected bureaucrat functionaries who are unaccountable to the citizenry. These agencies have the power, by their rule making and interpretation abilities, to seemingly circumvent the law and the Constitution. ...
Click to expand...

Alex Clayton said:
Sadly you are either trying to be funny, or woefully ignorant of how it works. Sadly a LOT of gun owners chose to remain woefully ignorant of how this all works. Feds change "rules" all the time. If you end up on the wrong side of some new "rule" you have fun telling the Judge that they never took Civics class. While you sit in jail shaking your head wondering what just happened <shrug>
Click to expand...

Thank you both for providing good examples of the rampant ignorance posted in this thread.

Administrative agencies derive their authority from the legislature, and the scope of an agency's authority is limited to that conferred by the legislature:
... governmental agencies must still act within Constitutional and statutory parameters. These and other limits have been codified, for the most part, into the overall statute known as the Administrative Procedure Act (APA) and state analogs, which provides for the roles and powers of all the agencies, and the procedures by which they must abide by in all their functions. APA categorizes administrative functions into formal and informal rulemaking and adjudication, which have binding effects, as well as guidance, which has no binding effect. The APA further prescribes certain procedural rules by which the agencies need to follow before acting in one of the functions listed....​
Click to expand...

In any event, administrative agencies aren't going anywhere.
 
Frank Ettin said:
Why do you think that? Do you have any evidence to support that claim? In fact, you obviously didn't do any research and just made that up.

See, for example, U.S. v. Dougherty, Crim. No. 00-425 (WGB) (D. N.J. 4/23/2002) (D. N.J. 2002), slip op at 1:
​

See also, U.S. v. Grier, 354 F.3d 210 (3rd Cir. 2003), at 212:
​

So NFA indictments will charge the specific NFA statutes the grand jury decides were violated.
Click to expand...
Sorry Frank, just joking... I know this probably isnt the thread for that, but thanks for the codes!
 
Status
Not open for further replies.

Similar threads

K
  • Locked
Forward pistol grips on pistols, is the atf wrong?
2
Replies
25
Views
3K
F-111 John
F-111 John
T
  • Locked
Any Other Weapon/DD Encore 20 gauge Pistol
Replies
1
Views
511
tube_ee
T
S
  • Locked
Must an AOW be a "Firearm"?
Replies
21
Views
2K
wdlsguy
W
S
  • Locked
Alaska long gun laws
Replies
5
Views
745
Zoogster
Z
M
  • Locked
Short barreled rifle vs long barreled pistol??
Replies
9
Views
1K
tkopp
T
Back
Top