ATF's Final Rule Definition of "Engaged in the Business" as a Dealer in Firearms amounts to 466 pages of responses to comments and the final rule itself.  Over 252,000 of the 258,000 comments or 98% in favor of the proposed rule were form letters with identical text found online and recommended by (anti-gun) organizations.  Only 5,140 were not form letters.  Of the 99,000 comments opposed to the rule, 80,000 or 81% were form letters.  That means that 18,810 were not form letters.  So more than three times the numbers of opponents filed comments with actual substance as did those in favor.

The final rule is substantially the same as the proposed rule.  See my previous post "'He's at it again!'  Merrick Garland proposes ever-more intrusive ATF regulations."  A number of points that I (and others) made in comments filed in opposition to the proposed rule were taken seriously enough for ATF to reject at length.

One new item stands out.  The Gun Control Act (GCA) excludes occasional sales and purchases of a "personal collection" of firearms from the term "engaged in the business" of dealing in firearms.  The proposed rule defined "personal collection" to include curios and relics and firearms used in recreational activities.  In response to numerous comments criticizing the proposal for not including firearms used for self-defense, the final rule explicitly states that "the term [personal collection] shall not include firearms accumulated primarily for personal protection." Yet nothing in the statute excludes such firearms from being part of a personal collection.

By purporting to exclude the occasional buying and selling of firearms acquired for self-defense from the "personal collection" category, the rule would render the person more likely to be subject to the licensing requirement.  Yet that category was enacted by the Firearm Owners' Protection Act of 1986, which declared that the rights of citizens … to keep and bear arms under the second amendment to the United States Constitution … require additional legislation to correct existing firearms statutes and enforcement policies."  And the Supreme Court stated in D.C. v. Heller that the Second Amendment protects "arms 'in common use at the time' for lawful purposes like self-defense."

In defining "engaged in the business" as a dealer, the rule states that "there is no minimum threshold number of firearms purchased or sold that triggers the licensing requirement," and that "even a single firearm transaction or offer to engage in a transaction, when combined with other evidence … may require a license."  Sounds pretty vague given that engaging in business of dealing in firearms without a license is a serious felony.

The rule purports to create a presumption in civil and administrative proceedings that one is engaged in the business if one "repetitively resells or offers for resale firearms" within 30 days after purchase, or within a year after purchase if the firearms are "new, or like new in their original packaging" or "the same make and model, or variants thereof."  These are activities in which collectors typically engage – sometimes quickly moving the collection up the ladder with more collectible acquisitions and collecting variations of the same make and model.  Nothing in the GCA imposes such time limits.

The rule also purports to create a presumption in civil and administrative proceedings that "a person has intent to predominantly earn a profit" if the person "posts firearms for resale, including through the Internet" or repetitively rents "a table or space at a gun show," and the list of presumptions "are not exhaustive."  Again, these are activities in which collectors typically engage. And the statute excludes from such "predominant intent to earn a profit" occasional sales to enhance a personal collection.

The rule claims that the above rebuttable presumptions do not apply in criminal cases, but says the opposite by stating that "they may be useful to courts in criminal cases, for example, when instructing juries regarding permissible inferences."  Jury instructions are based on statutory text and judicial opinions, not advocacy by the very agency involved in prosecuting alleged violations.

Many comments argued that the rule violates the Second Amendment.  While dictum in Heller did not question the validity of "laws imposing conditions and qualifications on the commercial sale of arms," the new rule – which is not a "law" – redefines "engaged in the business" to include many private, non-commercial sales.

ATF's commentary includes the following fundamental misunderstanding of Supreme Court precedent: "In response to commenters stating that the Department should not use the Heller two-step process, the Department acknowledges that Bruen abrogated the 'two-step' framework of Heller, as 'one step too many,' and rejected the application of means-end scrutiny at the second step."  But it was lower courts that obstructed Heller, not Heller, that invented the two-step framework.  Relying on text and history, Heller rejected means-ends scrutiny (for which Justice Breyer argued in his dissent), and N.Y. State Rifle & Pistol Ass'n v. Bruen reinforced and expanded on that rejection.

In support of its expansion of the licensing requirement, ATF's response seeks to find historical analogues under Bruen in the wrong places.  In 1794, Congress restricted the export of arms and matériel in order to enhance the arming of America at a time when war with Great Britain threatened.  The colonies restricted arms trade with Indians to reduce the threat from hostile tribes.  Massachusetts enacted a gun proving law.  Various laws concerning gunpowder were enacted to ensure a safe, reliable supply.  None of these laws parallels the "how" and the "why" of the rule's radical expansion of the licensing requirement.

ATF's commentary fails to rebut the comments that the agency lacks delegated authority to promulgate the rule.  In enacting the Gun Control Act in 1968, Congress rejected a provision that would have made it a crime to violate a regulation.  Instead, all GCA offenses are defined in terms of violations of "this chapter," i.e., chapter 44 of 18 U.S.C., the criminal code.  The Firearm Owners' Protection Act of 1986 reduced ATF's regulatory authority by changing the original phrase "such rules and regulations as he [the Secretary] deems reasonably necessary" to "only such rules and regulations as are necessary."  Finally, the delegation by Congress to ATF to promulgate explicit, limited regulations negates the power to adopt expansive, general regulations under the rule expressio unius est exclusio alterius.

The commentary also fails to rebut comments citing Supreme Court precedents such as Thompson/Center Arms v. U.S. holding that both criminal and noncriminal applications of a statute must be interpreted consistently and, if ambiguity exists, interpreted against the government in accord with the rule of lenity.

Finally, on some issues ATF is plainly erroneous but sticks to its error nonetheless.  For instance, the GCA prohibits an FFL from transferring a firearm in interstate commerce to a non-FFL, but exempts "returning a firearm or replacement firearm of the same kind and type to a person from whom it was received."   18 U.S.C. § 922(a)(2)(A).  ATF adds the limitation that it may be returned only "for the sole purpose of repair or customizing," which it justifies because the phrase "has long been found in the regulations."  Never admit a mistake, especially if it is longstanding.

"As more persons become licensed under this rule, those licensees will conduct more background checks," as the commentary correctly states.  Indeed, that is its purpose.  Since Congress rejected universal background checks, the Biden Administration decided to do the same by regulation.

This rule on "engaged in the business" is the third major set of new regulations set forth by Attorney General Garland, following those on "frames-or-receivers" and "pistol braces."  They were preceded by the Trump Administration's "bump-stock" rule, which is the subject of Cargill v. Garland, which was argued in the Supreme Court this term.  We'll see whether the Court sets limits on what has become a constant pushing of the envelope of regulatory overreach by the executive branch.

* * *

As I posted last week, the Commissioner of the Washington Supreme Court scheduled a hearing on April 17 regarding the stay he issued against the injunction against enforcement of the state's magazine ban that was ruled unconstitutional by the Superior Court for Cowlitz County in State of Washington v. Gator's Custom Guns.  At the hearing, the Commissioner responded to criticism for his issuance of the stay without having time to study the court's 55-page ruling and the state's 32-page motion to stay.  He stated that he received the papers on April 8 at 4:14 pm and issued the stay at 4:58 pm.  He didn't need more time to review the papers because he had done "a lot of research" beforehand and made himself into an expert on the issue; he "anticipated all the arguments the Attorney General would make" and had "boiler plate templates" for the stay order.

Most of the "hearing" consisted of the Commissioner's musings.  A 12-gauge shotgun or a revolver would be good enough for self-defense.  A semiautomatic works fine with 5 or 10 rounds.  Judge Benitez's decision in Duncan v. Bonta holding California's magazine ban violative of the Second Amendment was based on experts who were "snake oil" salesmen.  The arms that pioneers had when Washington was settled were "mind-bogglingly" different than now.  The Commissioner anticipates a decision next week on whether the stay will be made permanent.  Don't hold your breath waiting for it to be lifted.

The post Second Amendment Roundup: ATF redefines "engaged in the business" appeared first on Reason.com.

On Wednesday, the Supreme Court heard oral argument in Garland v. Cargill, which poses the issue of whether a semiautomatic rifle with a bump stock is a machine gun.  A machine gun is defined as "any weapon which shoots … automatically more than one shot, without manual reloading, by a single function of the trigger." 26 U.S.C. § 5845(b).  If a gun fires automatically, i.e., without any manual manipulation, and it does so with a single function of the trigger – which could be a pull or a push – it's a machine gun.

In the very first two sentences of his opening statement for the government, Brian Fletcher unknowingly explained why a bump stock is not a machine gun.  With a bump stock, one "places his trigger finger on the built-in finger ledge and uses his other hand to press the front of the rifle forward. As long as the shooter maintains that steady forward pressure the rifle will fire continuously…."  What he didn't say is that if one just pulls the trigger but does not manually continue to push the handguard forward, the gun fires just one shot and stops firing.

A video is worth a thousand pictures.  Watch how a machine gun fires.  You can hold it with one hand and just pull the trigger, and it fires continuously until the magazine is empty.  Now that's automatically by a single function of the trigger.

Not so with the bump stock.  Try holding it with just one hand and pull the trigger.  One shot and it stops firing.  Look here at 3:15-4:48.  Unlike the above machine gun, it did not continue firing even though the trigger remains pulled back.

Now watch a gun fire with a bump stock in slow motion, starting at 4:54. "So watch here as my hand pulls forward on the barrel of the gun," the narrator states.  "The gunman fires and the recoil brings the trigger back to my stationary finger over and over, causing the trigger to be pulled again and again very quickly…."  As the video shows, the trigger functions only once with each shot.

Or as Mr. Fletcher put it, pull the trigger and also "press the front of the rifle forward" and "maintain[] that steady forward pressure."  That's not "automatic" by a "single function of the trigger."  He also said that the firing is "automatic" because one "presses forward to fire the first shot, the bump stock uses the gun's recoil energy to create a continuous back-and-forth cycle."  What happens if one stops pressing forward, even with the trigger pulled back?  It stops firing.

For years, the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) classified non-mechanical bump stocks as not being machine guns.  Richard Vasquez was a top examiner at ATF's Firearms Technology Branch who was involved in this classification.  As counsel for clients regulated or prosecuted by ATF, I knew Mr. Vasquez to be a tough but fair law enforcement officer who knew where to draw the line.  He is now retired, and you can watch his explanation of why the bump stock is not a machine gun.

While the oral argument posed many hypotheticals, two real-life firearm designs came up.  One was about the Atkins Accelerator, a mechanical bump stock that utilized a spring device to facilitate continuous fire.  ATF initially approved the design as not being a machine gun, but later rescinded that classification and decided that it is a machine gun.  Unlike the non-mechanical bump stock at issue here, one did not need to maintain continuous, forward pressure on the barrel or handguard to continue to fire.

The other device mentioned in the argument was the one referenced in US v. Camp (5th Cir. 2003), which involved an electrically-operated trigger mechanism.  It "required only one action — pulling the switch he installed — to fire multiple shots," and thus was found to be a machine gun.  No manual manipulation was involved.  That's a far cry from a manually-operated bump stock.

Much was said in the argument about fast firing, even hundreds of rounds per minute (just a theoretical concept, because magazines only hold 30 or so rounds).  But as Mr. Fletcher conceded, "we acknowledge this is not a rate-of-fire statute."  Indeed, under the statutory definition, a machine gun could fire very slowly, but could still fire automatically with a single function of the trigger.

The transcript of the oral argument reveals a robust debate, but the statutory text is the elephant in the living room.  A non-mechanical bump stock just isn't a machine gun.

The post Second Amendment Roundup: Cargill Bump Stock Argument in Supreme Court appeared first on Reason.com.

The District of Columbia's ban on firearm magazines that hold over ten rounds was the subject of oral argument in the D.C. Circuit on February 13. The case is Hanson v. District of Columbia, and the appeal concerns the district court's denial of a preliminary injunction against enforcement of the ban.  The circuit panel included Judges Patricia Millett ('13) and Justin Walker ('20), and Senior Judge Douglas Ginsburg ('86).

The argument should have turned on one, and only one, question: are the banned magazines commonly possessed by law-abiding citizens for lawful purposes? As Professor Mark W. Smith has explained, under District of Columbia v. Heller (2008) and N.Y. State Rifle & Pistol Ass'n v. Bruen (2022), that is the only relevant question in an arms ban case. See Smith, "What Part of 'In Common Use' Don't You Understand?" Harvard JLPP (2023). That is because the common use test is the product of the text first and then history approach the Supreme Court has applied in this context. In Heller, the Court examined the Second Amendment's language to determine that as a matter of plain text "arms" includes (but is not limited to) all firearms. It then examined history to determine that only dangerous and unusual firearms can be banned. It follows that citizens have a fundamental right to possess firearms that are in common use today, because if they are in common use, they cannot be "dangerous and unusual."

The answer to the common use question in this case is a resounding and unequivocal yes — there are hundreds of millions such magazines lawfully owned for lawful purposes by Americans today.  By any measure, that's common possession. To be sure, magazines are not themselves firearms, but they are key components of all modern semiautomatic firearms, as they are the part of the firearm that holds and feeds the ammunition.  And the practical effect of the magazine ban is to prohibit an entire category of firearms; i.e., firearms that are capable of firing more than 11 rounds (one in the chamber, 10 in the magazine) without reloading.

Instead, the oral argument was a bit of déjà vu all over again. In Heller, the Supreme Court held that firearms "in common use" for "lawful purposes like self-defense" may not be banned.  After Heller, I was part of a team challenging D.C.'s ban on such magazines (as well as on semiautomatic rifles) in a case that came to be known as Heller II. In the D.C. Circuit, oral argument was conducted before Judge Douglas Ginsburg (yes, the same Judge Ginsburg) together with then-Judge Brett Kavanaugh and Judge Karen Henderson.

In a 2-1 opinion in Heller II (2011), Judge Ginsburg conceded that the subject magazines are in common use, but upheld the ban based on an interest-balancing, intermediate scrutiny analysis, despite Heller's express rejection of interest-balancing.  That was the first opinion to uphold a magazine ban following Heller. As I've shown elsewhere, most other appellate courts deciding such cases copied Heller II's approach, despite that approach being contrary to Heller. Indeed, then-Judge Kavanaugh dissented in Heller II to explain that the intermediate-scrutiny approach adopted by the court could not be squared with Heller.

Justice Kavanaugh's Heller II dissent was vindicated by the Supreme Court in Bruen, which made clear that Heller had rejected any levels of scrutiny analyses in Second Amendment cases. Bruen reiterated that the Second Amendment protects arms that are "in common use," as opposed to those that "are highly unusual in society at large." In doing so, the Court cited favorably to Justice Kavanaugh's Heller II dissent several times.

That's the context in which oral argument in Hanson was held. With intermediate scrutiny eliminated, the outcome of the case should be straightforward—the banned magazines are in common use for lawful purposes, and therefore they cannot be banned. While Judges Millett and Ginsburg asked several questions that appeared to challenge this result, it is inescapable under a proper application of Heller.

Plaintiffs' lawyer Edward Wenger was first up. Right away, Judge Millett jumped in with the observation that Bruen did away with intermediate scrutiny, but common use remained an issue. Was the court's observation in Heller II that magazines capable of holding more than 10 rounds are in common use binding on the court now?  The answer is yes—Bruen did nothing to undermine a holding that the banned magazines are in common use. Regardless, those magazines have only gotten even more numerous since Heller II was decided over a decade ago, so whether that aspect of the decision is binding is of little import.

Judge Ginsburg pointed out that while the court in Heller II stated that the banned magazines are in common use, it reserved decision on whether those magazines are commonly used for lawful purposes. While that technically is true, it ultimately does not matter. The government cannot prove that the tens of millions of Americans who own these magazines are criminals who possess them for unlawful purposes. The leading survey we have on use of magazines capable of holding more than ten rounds is the 2021 National Firearms Survey by Professor William English of Georgetown University. That survey found that approximately 39 million Americans have owned as many as 551 million magazines capable of holding over 10 rounds of ammunition. And they own them for a variety of lawful purposes, including recreational target shooting (64.3%), home defense (62.4%), hunting (47.0%), defense outside the home (41.7%), and competitive shooting sports (27.2%).

Judge Millett asked if "there's some level of magazine that could be prohibited as not in common use or not in common use for self-defense." (Again, "for self-defense" is not included in the test under Heller.) While theoretically that could be true, any such level would be well north of D.C.'s limit of 10 rounds. Again, tens of millions of Americans have owned hundreds of millions of these magazines.

Responding to the correct assertion that D.C. bears the burden under Bruen to show that the banned magazines are not in common use, Judge Millett commented that it is the plaintiffs who wish to change the status quo and that doing so would inflict irreparable harm on the District. It is true that the plaintiffs are challenging the status quo, but under Bruen the District has the burden to show that its law is consistent with the Second Amendment. And since it is not, there is no harm to the District from being precluded from enforcing an unconstitutional law. Instead, the irreparable harm in the case is being inflicted on the plaintiffs and the other residents of the District of Columbia who are being deprived on their fundamental right to keep and bear arms.

In any event, there is no plausible scenario in which the tens of millions of Americans who have owned magazines that are banned by D.C. are predominantly criminals. Indeed, given that there are hundreds of millions of these magazines, it is clear that only the tiniest percentage of them will ever be used in crime. As Judge Walker commented, this line of questioning seems to promote "a dim view of the American public." It simply cannot be the case that the tens of millions of Americans who choose these magazines are not using them for lawful purposes.

Next up was Ashwin Phatak, counsel for the District. Phatak argued that because there are 700,000 registered machine guns in the United States, the common use inquiry "can't just be a numerosity analysis." But Phatak's numbers are too high, because according to ATF data there are only about 176,000 registered machine guns owned by civilians in the country. See Hollis v. Lynch (5th Cir. 2016). The remaining machine guns are owned by state and local law enforcement or by licensed firearm manufacturers.  Regardless, whether the true number is 176,000 or 700,000, that is a far cry from the "500 million high-capacity magazines" cited by Judge Walker as a comparison.

Phatak looked for historical precedent in three states that during the Depression era restricted semiautomatic rifles with certain magazine capacities.  Of course, as Judge Walker pointed out, per Bruen, "three is not enough." And even if it were 30 it wouldn't matter: the question under Heller is whether the banned magazines are in common use today, not 100 years ago.

Phatak hypothesized that "if the National Firearms Act had been passed in 1954," and "far more machine guns had circulated," the plaintiffs would be arguing Second Amendment protection through common use. But as Judge Walker explained, "If it's dangerous, unusual, we would expect our legislators to step in and ban them before they become dangerous and usual." And the flip side of that is that if the American people determine that an arm is valuable for lawful purposes, we would not expect bans to persist across the country over a substantial period of time.

Judge Millett attempted to come to the rescue: "Manufacturers put out higher magazines, I need a higher magazine. It's like, new iPhone comes out, I got to have a new iPhone, new magazine comes out, I got to have a new magazine." Same for machine guns and grenade launchers.  Phatak's response: "I totally agree, Judge Millett."

But consumers don't buy types of weapons just because they are legal and available on the market. Machine guns were a commercial failure before being restricted in the NFA in 1934.  Grenade launchers weren't restricted until the 1968 amendments to the NFA, under which they are still lawful on registration with ATF and payment of the $200 tax.  How many consumers have them? And the reality that neither marketers nor advertising budgets can dictate to consumers is not limited to the marketplace for firearms. Our history is littered with failed consumer products, from the Ford Edsel to New Coke to Google Glass to countless Hollywood big budget busts.

Phatak rejected a standard of "what people feel they need," arguing that Heller looked at "the actual characteristics of handguns that make them useful for self-defense," such as "they can be held with one hand while you call the police." But the portion of Heller Phatak referenced here actually is devastating to his position. That is because immediately after discussing reasons why citizens may prefer handguns, Heller concluded that, "whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition on their use is invalid." The focus of the Heller analysis is on what law-abiding Americans choose; judges and legislators are not authorized to second-guess those choices.

More softball questions from Judge Millett: "When did manufacturers start selling magazines over 10 with the semi-automatic handguns?" Phatak: Not "until at least the 1980s."  Wrong – e.g., the Browning Hi-Power with its 13-round magazine was introduced commercially in 1935. And in any event, it does not matter – they are in common use for lawful purposes today.

Phatak referenced statistics showing that the average number of shots fired in self-defense is two, and argued that "nobody needs the firepower where they can fire 11 rounds." But again, what is appropriate for self-defense is for the American people to decide, and they have decided that more ammunition capacity is better. And in any event, the most frequent number of shots fired in defensive gun uses actually is zero, since typically only brandishing a gun is required to deter a criminal attack. Does that mean the government could limit citizens to guns that fire blanks? Of course not.

The bottom line is that once it is evident that an item is a bearable arm, the government has the burden to show that it is not in common use.  If it cannot do so, the arm may not be banned.  That's the Heller-Bruen rule for arms-ban cases.

Judge Ginsburg is a capable and experienced jurist.  It was brought out clearly in Hanson that the common use test provided by Heller is straightforward and easy to apply. One hopes and expects that he will faithfully apply that test. But if we get another 2-1 déjà vu on D.C.'s magazine ban in Hanson, the Supreme Court ultimately will have to reverse Judge Ginsburg yet again.

The post Second Amendment Roundup: D.C.'s Magazine Ban Argued Again in D.C. Circuit appeared first on Reason.com.