Reasons other than the 2nd......

[Historic Arms LLC]

The lack of any consistency in testing results and classification letters from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE), Firearms Technology Branch (FTB) is documented, and rather monumental in size and scope. This lack of consistency has now gone beyond impacting the United States firearms industry, and now is affecting United States citizens who are required at peril of life, liberty or property to speculate as to the meaning of penal statutes. The current lack of a defined testing procedure encourages arbitrary enforcement by failing to describe with sufficient particularity what a person must do in order to satisfy the definitions set forth in the National Firearms Act and the Gun Control Act of 1968.

Congress has documented the fact that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE), Firearms Technology Branch (FTB) has no written or publicly available testing procedure for testing of evidence presented in Federal Court, that would enable the ordinary citizen to conform his or her conduct to the law. Please see: Congressional Research Service, Memorandum "ATF Firearms Testing Procedures", October 20, 2005

There is pending legislation that addresses this issue directly, H.R. 1791, "The Fairness in Firearms Testing Act". This legislation improves consistency and accountability in firearm testing by requiring the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE), to video document all examinations and tests.


The Supreme Court has clearly provided guidance, though currently ignored by BATFE:

City of Chicago v. Morales, 527 U.S. (1999):

"Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement." See Kolender v. Lawson, 461 U.S. at 357.

"The requirement that a legislature establish minimal guidelines to govern law enforcement." See Kolender v. Lawson, 461 U.S. at 358.

"First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 59 S. Ct. 618 (1939).

Kolender v. Lawson, 461 U.S. (1983):

"We conclude 647(e) is unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute."

Lanzetta v. New Jersey, 306 U.S. (1939):

"A fundamental precept of our justice system is that citizens may not be " at peril of life, liberty or property to speculate as to the meaning of penal statutes." [about the statute in question]; "the terms it employs to indicate what it purports to denounce are so vague, indefinite and uncertain that it must be condemned as repugnant to the due process clause of the Fourteenth Amendment."


The BATFE through it's then Director Brad Buckles testified before Congress [House Committee on Appropriations, fiscal year 2003, pages 325-326] "ATF recognizes that machinegun receivers may be modified so that they no longer fall within the statutory definition of "machinegun" within the NFA." When questioned specifically about M-14 semiautomatic rifles built from surplus parts.

Mr. Buckles statements must have gone unheard by his employees. In 2006 in the 9th Circuit, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE), moved forward with US v. ALBERT KWOK LEUNG KWAN, Case 2:06-cr-00305-TSZ.
Mr. Kwan was charged with possessing an unregistered M-14 machinegun. The BATFE confirmed in court that the rifle while in Mr. Kwans possession was not capable of firing as a "machinegun", and that BATFE, Firearms Technology Brach did in fact through it's testing, altered Mr. Kwans rifle to fire as a "Machinegun". Mr. Kwan was found not guilty, but was required at peril of life, liberty or property to speculate as to the meaning of penal statutes. There were other actions taken by BATFE, that were clearly addressed by the Judge whose order who cited City of Chicago v. Morales, 527 U.S.(1999), and Lanzetta v. New Jersey, 306 U.S. (1939). Please see: Case 2:06-cr-00305-TSZ Document 144 Filed 08/15/2007

 

[Sistema1927]

Sorry, but you lost me.

 

[ctdonath]

Methinks his point is that a good reason to not have gov't regulation of firearms is that they're demonstrably inept unto malice in doing so. The NFA registry is acknowledged (in court, by BATFE agents) to have a 50% error rate. The BATFE "proves" a great many guns are illegal machineguns (to the great harm and suffering of citizens charged) but provides no documentation or procedures on how such proof was arrived at (to wit: any gun expert with lots of time and tools can make, by modification or damage or abuse, practically any semi-auto do a double slamfire at least once - hardly "proof" - and then declare the gun an illegal MG, in court, without actually explaining the absurd, malicious, convoluted steps taken to achieve such behavior).

The post does kind miss actually making its point, however, and just dives into details.

 

[Historic Arms LLC]

Sorry my bad, my point is...

Congress does not want to hear about 2nd amendment issues right now. I have heard [firsthand in some cases] "it is too polarizing". I tried to put it in two pages or less why the Congress needs to have oversight hearings on BATFE other than the second amendment.


"Me thinks his point is that a good reason to not have gov't regulation of firearms is that they're demonstrably inept unto malice in doing so. The NFA registry is acknowledged (in court, by BATFE agents) to have a 50% error rate. The BATFE "proves" a great many guns are illegal machineguns (to the great harm and suffering of citizens charged) but provides no documentation or procedures on how such proof was arrived at (to wit: any gun expert with lots of time and tools can make, by modification or damage or abuse, practically any semi-auto do a double slamfire at least once - hardly "proof" - and then declare the gun an illegal MG, in court, without actually explaining the absurd, malicious, convoluted steps taken to achieve such behavior)."

Spot on!

More simply put: How can you be assured your firearm will conform to the law via BATFE testing, when the test it will be submitted to is unwritten, and NOT publicly available, or even consistently applied.

I dove into details [my bad] to be VERY specific on the information so that if desired could be vetted, and independently verified through it's source material should one have the need [a defendant] or the the want [motivating their congressional reps to action].

Len

 

[Elm Creek Smith]

If I recall correctly since I can't locate the case file right now, there was a police officer whose privately-owned semi-automatic started "doubling." He took it to the dealer who shipped it off to the manufacturer to be repaired. The shipment was intercepted by the BATFE, and the gun was then "tested" until the BATFE got it to "double." They then arrested and charged the police officer with illegal possession of an illegal machinegun!

In this case, the judge was not amused and demanded that the BATFE returne the police officer's rifle, pay his court costs and attorney's fees, and may have mad them pay for fixing the officer's rifle.

Some judges, not enough, don't have a sense of humor about governmental misconduct.

ECS

 

[yhtomit]

Elm Creek Smith: If you do locate this case, I'd be interested, would like to read that one (and keep it around in my personal a-HA! file to show to skeptical friends who think too highly of the government)

Thanks!

timothy

 

[Bubbles]

Run a google search on "ernie wrenn" and BATF. He wasn't a cop but BATF went after him for essentially the same thing.

 

[IA_farmboy]

Me thinks that the videos of how the BATFE does its testing will not happen.

They could argue that the videos would essentially be a how-to on the manufacture of machine guns.

 

[ctdonath]

"It's a secret, trust us" doesn't (or shouldn't) fly in court.

The jury needs to know that to make gun X "function as a machinegun" required
- ultra-rare ammo with super-sensitive primers so touchy the manufacturer wouldn't deliver them
- a deliberately jammed firing pin
- the disconnector (?) cut in a machine shop so it wouldn't stop bolt cycling
- a "load 2, fire" process repeated literally hundreds of times by very bored but very well-paid technicians
...all so the gun could be badgered into doing a slamfire ONCE.

Several hours of video showing this hardly constitutes a "how-to on the manufacture of machine guns."

The jury expects "insert normal ammo, pull trigger once, fire several shots until trigger released or ammo spent."
The "testing" is "insert dangerously sensitive ammo, smear stiff grease in critical spots, break parts, and keep trying until a not-unusual malfunction occurs."
The jury needs to know that what they expect happened in testing, and what actually happened in testing, are VERY different.

 

[Historic Arms LLC]

It all goes back to....

How can you be assured your firearm will conform to the law via BATFE testing, when the test it will be submitted to is unwritten, and NOT publicly available, or even consistently applied.

:banghead:

 

[Art Eatman]

An effort toward a solution to BATFE's testing system would be to try to pressure pro-2A Congress folks for a law mandating a standardized and publicized test. The talking point would be along the lines of, "How do you know if you have a problem when you aren't told how to determine it by a standardized test?"

Art

 

[WeedWhacker]

Another angle would be to look at this and other items on the long list of BATF(E) abuses, recognize them for the inherant flaws they are, and work to encourage those in a position to scrap such rogue agencies to do so.

... one of which may be Republican Presidential candidate Ron Paul ...

 

[Crunker1337]

If the BATFE really wants to put you in jail, they can confiscate one of your EBRs under suspicion of owning an illegal machinegun and then they can convert it to full-auto as they aren't really supervised in their investigations.

Or, they can just go Waco on you.

 

[Historic Arms LLC]

Of Concern to be sure...

The idea that ATF acts the way it does is not new to most FFL holders, especially any manufacturer or SOT holder.

The fact the BATFE can and does seek revenge is never far from my mind.


Ask yourself these questions:

Why didn't the dealer who sold Kwan the VP-70M in 1980 offer to testify when he sold it. [since ATF told grand jury it was a POST 86 sample to secure an indictment].

Why would that dealer remain silent all the while knowing he could prove the VP-70 was lawful, therefore make that charge "go away".

I take Wild Arsed Guess here, and say because he feared what would happen to him if he stood up and said something. ATF does not like having their cases derailed by trivial problems of fact, and troublesome truths.[or the people who bring them forth]


BATFE cases based on huey only will go away when honest men are willing to swallow that pit in their stomach and start telling the truth under oath in court.

Yes, you will be scared. Yes, you will be terrified from time to time. It WILL cost you either money or time or grief.

Each man must determine for himself if the price is to high.


Len

 

[predator611]

Here is all you'll ever going to need about congress watchdogging the BATFE, only in cases where a budget is involved, they royally screw up and everybody in the free world knows about it 5 minutes later(Waco), or they hold illegal gun show stings in a gun loving state. In all of the above someone resigns or gets reassigned to somewhere else and that is the end of it. Sorry but it's truth of fact and if you want to hear a funny they're considered a branch of the justice dept, very laughable.

 

[ConstitutionCowboy]

There is an underlying reason for this: Congress abdicated its powers vis-a-vis the governance of arms in this country - and unconstitutionally, I must add. Congress granted power to the BATFE and other agencies to come up with rules and what they call "regulations" that those in Congress should have and are supposed to have the legislative power over. All of these rules and "regulations" never get signed into law by the President. The only "authority" the President has in this mess is if Congress decides to disallow a certain "regulation" proposed by this agency, he gets to approve the disallowing and the "regulation" is quashed, or veto the disallowing and the "regulation" becomes law.

Congress has ducked the responsibility of the unpopular gun control issues and therefore ducked the scrutiny and fury of the people. Now, instead of facing the wrath of the people when a stupid or debilitating rule or "regulation" gets put into practice, Congress gets to say "See how much we are looking out for you?" when they shoot down said nasty act of one of these bureaucracies. They appear as the good guys when they are really the bad guys for setting these agencies and bureaucracies free do do the dirty work those in Congress want to get done but don't want to take the heat for.

Read the Constitution. "ALL legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Emphasis mine.) I don't see any mention of agencies or bureaucracies in that passage from Article I, nor do I see power granted to Congress to delegate any of that power.

Senators and Representatives get elected by the people. Bureaucrats are not elected, therefore, their tenure in office is beyond the suffrage of the people. Only those who are elected by the people are vested with legislative power in the Constitution. Any rule or "regulation" enacted by any agency or bureaucracy is unconstitutional, and until Congress takes back its powers, and/or the Court acts, we will suffer the consequences of this debacle.

This is a matter of law. Unconstitutional law. Now that the facts of the matter are established, a thread needs to be started in the Activism Forum to deal with the problem.

Woody (Formally woodcdi)

"One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown...." George Washington, from his farewell address.

 

[PTK]

We could always wait until the BATFE really messes up and tells a courtroom that a particular bolt-action or single-shot firearm is a machinegun.

Oh, wait, that's already happened.

 

[Elm Creek Smith]

TIMOTHY

I haven't found the case file yet, but this is what I was talking about. The Pennsylvania State Trooper even asked the BATF how to handle his malfunctioning COLT AR-15! They told him to ship it back to COLT and intercepted it. Then they fired it until they got it to "double" and charged him with "unlawful possession of a machinegun!!!

http://www.mega.nu/batf/croaker/strange.html#TROOPER

 

[Historic Arms LLC]

I think that case was prior to....

An ATF open letter that addressed this issue. ALL AR-15's prior to 1986 were built with M-16 fire control parts. Some manufacturers were forced to advertise safety recalls in the late 80's due to the open letter.

************************
An edited version of this letter can be found in the
ATF "Yellow Book", "Federal Firearms Regulations Reference Guide",
ATF P 5300.4 (10-95) at page 91:

"I want to bring to your attention possible Gun Control
Act violations in which you could inadvertently become
involved.

"ATF has encountered various AR15-type assault rifles
such as those manufactured by Colt, E.A. Company, SGW, Sendra
and others, which have been assembled with internal components
designed for use in M16 machineguns. It has been found that
the vast majority of these rifles which have been assembled
with an M16 bolt carrier, hammer, trigger, disconnector and
selector will fire automatically merely by manipulation of the
selector or removal of the disconnector. Many of these rifles
using less than the five M16 parts listed above also will
shoot automatically by manipulation of the selector or removal
of the disconnector.

"It must be pointed out that any weapon which shoots
automatically, more than one shot, without manual reloading,
by a single function of the trigger is a machinegun as defined
in 26 U.S.C. Section 5845(b), the National Firearms Act (NFA).
In addition, the definition of a machinegun also includes any
combination of parts from which a machinegun may be assembled,
if such parts are in possession or under the control of a
person. Any machinegun is subject to the NFA and the
possession of an unregistered machinegun could subject the
possessor to criminal prosecution.

"Additionally, these rifles could pose a safety hazard in
that they may fire automatically without the user being aware
that the weapon will fire more than one shot with a single
pull of the trigger.

"In order to avoid possible violations of the NFA, M16
hammers, triggers, disconnectors, selectors and bolt carriers
must not be used in assembly of AR15-type semiautomatic
rifles, unless the M16 parts have been modified to AR15 Model
SP1 configuration.
Any AR15-type rifles which have been assembled with M16 internal components should have those parts removed and replaced with AR15 Model SP1 type parts. These parts are available commercially or the M16 component may be modified to AR15 Model SP1 configuration.



"It is important to note that any modification of the M16
parts should only be attempted by fully qualified personnel.

"On the following page are illustrations of AR15 Model
SP1 component parts and the corresponding M16-type parts.
Should you have any questions concerning AR15-type rifles with
M16 parts, please contact your nearest ATF law enforcement
office. Our telephone numbers are listed in the United States
Government section of your telephone directory under the
United States Treasury Department."
*****************************

Don't forget that US v. Staples dealt with this exact issue. the highest court in the land has spoken, but one must wonder if ever it was heard by BATFE.

Len