The ATF is giving out machine guns, whether you want one or not
opensourcedefense.substack.com
opensourcedefense.substack.com
Is there a lawyer type around that would mind pontificating on that? Or at least relevant statutes?
I'm fairly sure the U.S. Constitution explicitly prohibits ex-post-facto lawmaking
Article 1, section 9, clause 3: >No Bill of Attainder or ex post facto Law shall be passed.
Calder v. Bull redefined the restriction to only apply to criminal or penal law, and yet, when looking at how most of the NFA is enforced (as a tax, but with a felonious outcome for non-compliance), I don't understand how Calder v. Bull doesn't restrain the ATF from being able to reverse a judgement on the type of a firearm, when that carries with it the implicit threat of prosecution for an act previously considered legal. Then again, I'm guessing they squirm out of that by stating the regulation is fine being ex-post-facto, because it only modifies how the item is taxed, and completely ignore the fact the tax status directly enables a criminal charge that would be a-ok because the criminal statute you'd now be chargeable under was not ex-post-facto either.
Throw in the sketchiness around their serving him with that notice of rule change and unwillingness to present the report or an in writing decision, and the flimsiness of the alleged justification that someone managed to hammer in a part and get it to fire multiple shots with a single trigger pull, I can fully believe something like this would be tried, but can't bloody for the life of me take any civic edifice seriously that wields that level of myopia on a regular basis.
It's just bloody weird. Nothing seems to make sense about how Administrative law works in the U.S...
Guess I have Yet Another Research Topic to dig into...
Not a lawyer, read some books once, thoroughly regret it.
However, who decides to take someone to court, or apply the weight of a federal/state prosecution to someone in an attempt to do so? The on the ground executive agencies.
These agencies have wide latitude in interpreting what is or is not illegal, which could include asserting 'that is obviously not a machine gun' [https://en.wikipedia.org/wiki/Gatling_gun] to 'this is clearly a machine gun' [this case], even to the point of changing their mind and now prosecuting previously un-prosecuted 'now' violations.
It takes a case going to court to get the courts to weigh in on it in general, and controversial cases often will not. A recent example of such a 'this is fine', 'actually this is not and we're going to retroactively go after you for this' is the Polymer80 raid [https://www.rgj.com/story/news/2020/12/15/dayton-based-gun-m...], where a manufacturer following prior ATF guidelines regarding what is or is not a gun to make kits for self-manufacture is now accused by the ATF of selling and shipping guns - when their own prior guidance say they are not guns.
There are plenty of laws right now in all jurisdictions that are enforced with no real belief a court would ever uphold an arrest if it got that far. One such example is Loitering laws which have been ruled unconstitutional for many reasons, including 1st amendment, and even when rewritten to avoid those problems [https://en.wikipedia.org/wiki/City_of_Chicago_v._Morales], get ruled unconstitutional for other reasons like being so vague no one has any reasonable idea if it would apply to them.
They provide a fig leaf of lawfulness and authority on what is fundamentally a way to assert control over a group, individual, or place, and deter unwanted (by the agency) activity through harassment.
The associated arrest records (if they exist, in many cases the offender is released before booking) can be a big problem during background checks, or even trigger statutory penalties that can stop someone from exercising civil rights like owning a firearm for self defense.
Even without arrest records or formal charges, being arrested and held up to just short of 2 days (in California), and 3 days in other locations, has a major effect on people. A 'chilling effect' to use a common term.
If it gets to court, and the court rules against the agency, they can pick another lever to use. The taxpayers usually pick up the tab. It is very rare it gets that far however.
> All it needs is the ATF's pen.
I was so hoping someone designed a gun that needed a official ATF pen inserted to be fully automatic.
A good book Three Felonies A Day: How the Feds Target the Innocent