carlson1 wrote: ↑Fri Sep 09, 2022 5:21 am
I am not for sure how the ATF came to just write a memo and it is law. What happened to the House, the Senate, and the Presidents signature?
There are three ways laws come into being. The categories are:
1) Legislative Law - Enacted by congress
2) Executive Law - Executive Orders and rulings by executive branch departments (this is where the ATF comes in)
3) Judicial Law - Rulings handed down by the court system
All of these become law when they are executed. They are not just opinions. They are, of course, subject to review. The courts can nullify or modify legislative and executive rulings. The Legislature can enact laws that countermand executive or judicial findings.
I agree that the West Virginia v. EPA SCOTUS ruling is likely to rein in some of the bureaucratic excesses that have occurred in the past, but we'll have to wait and see to learn just what effect that will really have.
I need to re-read my copy of the US Constitution. Because I could have sworn that the power to make law rested with the legislative branch. The judicial branch can not make law, it can only interpret laws as they apply to a given set of facts and also determine whether they conflict with other laws (most notably the US constitution as the supreme law of the land). The Executive branch, and its agencies, is empowered to execute and enforce the law. That necessarily requires them to apply judgment in determining how a law would apply to a particular set of circumstances - such as in the case of pistol braces. None of this changes the fact that the legislative is the only branch that can make law.
At least this is my understanding. I am pretty busy at work today, but will take another look this weekend.
der Teufel wrote: ↑Sun Sep 11, 2022 11:39 am
There are three ways laws come into being. The categories are:
1) Legislative Law - Enacted by congress
2) Executive Law - Executive Orders and rulings by executive branch departments (this is where the ATF comes in)
3) Judicial Law - Rulings handed down by the court system
All of these become law when they are executed. They are not just opinions. They are, of course, subject to review. The courts can nullify or modify legislative and executive rulings. The Legislature can enact laws that countermand executive or judicial findings.
I agree that the West Virginia v. EPA SCOTUS ruling is likely to rein in some of the bureaucratic excesses that have occurred in the past, but we'll have to wait and see to learn just what effect that will really have.
I need to re-read my copy of the US Constitution. Because I could have sworn that the power to make law rested with the legislative branch. The judicial branch can not make law, it can only interpret laws as they apply to a given set of facts and also determine whether they conflict with other laws (most notably the US constitution as the supreme law of the land). The Executive branch, and its agencies, is empowered to execute and enforce the law. That necessarily requires them to apply judgment in determining how a law would apply to a particular set of circumstances - such as in the case of pistol braces. None of this changes the fact that the legislative is the only branch that can make law.
At least this is my understanding. I am pretty busy at work today, but will take another look this weekend.
What the poster described as judicial law is normally referred to (at least in police circles) as case law. This is not really law, but is the way the statutes are interpreted by the courts. There is a real question if this is law or not. The principle of stare decisis says they will decide the next case the same way so don't waste your time with it any other way. But if that were really true, we would not have just seen Roe v. Wade, or for that matter Dred Scott, overturned. Then there is the real question of how the court would rule on another law that was very similar but had some minor distinction and the circumstances that brought the case were slightly different. An example of this is the way the Texas law on sodomy was overturned. The officer went into the private apartment to catch two consenting adults and the privacy expected in the home came into play. But the law is still on the books in Texas and some ambitious DA (obviously not Soros funded) could decide to take a case that had the adults in some public or semi-public place (like a park restroom). I doubt it would happen normally, but NY is taking the exact wording of the Bruen decision (forbidding needing a good cause) and twisting it to requiring people to have good character in its place. Still leaves them may issue and will take another court case.
As for the executive law, I agree with you in the case of federal law. I believe the whole code of federal regulations is unconstitutional because it says the Congress is the maker of laws. But at the state level, administrative law is legal because our state constitution does not have the same restriction on the branches of government. I think they knew we would need something else since we so restricted the legislature in its power. I am not sure I agree it should be administrative law though, but it is what we have.
While ATF estimates that there are approximately three million pistol stabilizing braces, even other portions of the United States government recognize that this is a vast undercounting of the number of pistol braces currently in circulation. A report by the Congressional Research Service puts the estimate much higher; suggesting anywhere from 10 to 40 million pistol stabilizing braces. With so many in circulation, effectively banning firearms with these devices attached would be the largest confiscatory firearm regulation in the history of the United States.
...
More than one year since the comment period ended, and a year-and-a-half since the original proposed rulemaking, it is still unclear when, or how, the new rule will be implemented.
In January of this year, we reported, in a story on different rules Biden’s ATF had put in place, that the regulations page for the proposed stabilizing brace rule indicated it would be finalized in August.
That didn’t happen.
Now the regulations page says “Final Action” will take place on “12/00/2022.” What date that actually signifies is unclear, but it would appear the final rule remains in a holding pattern.
There may be other complications facing Biden’s ATF when it comes to this pending rule, other than the general complexity and poor optics of potentially criminalizing millions of Americans (especially disabled veterans) for owning items that same ATF previously said they could legally acquire and own.
The rule has now been transferred to the Office of Information and Regulatory Affairs for review. That means that the final rule could be posted in the federal register in the coming days.
The article goes on to note that Jim Jordan (R-Ohio) will House Judiciary Chairman when the House convenes next month, and Jordan has already called new BATFE independent and unilateral gun rules "a deliberate attempt to usurp the authority of Congress and infringe on American citizens’ fundamental Second Amendment rights." He sent a letter to BATFE director Steve Dettelbach that included, "Through its proposed rule, ATF seeks to subject stabilizing braces to GCA criminal penalties and NFA regulation without Congressional prohibition of the underlying activity."
Fingers crossed that the loss of the dimocrat House majority plus indications that SCOTUS could be inclined to rule in favor reigning in rulemaking that may exceed Constitutional authority--and given that it's already December 12--may convince the BATFE to sit on their hands for a while rather than attempt to do something incredibly stupid. Up to 40 million pistol stabilizing braces already sold? Can you imagine the nightmare? Even if it's 10 million and half of those want to submit paperwork to keep their previously completely-legal-to-purchase firearms, the ATF would be swamped logistically trying to handle all the NFA paperwork and stamps.
“Be ready; now is the beginning of happenings.”
― Robert E. Howard, Swords of Shahrazar
While ATF estimates that there are approximately three million pistol stabilizing braces, even other portions of the United States government recognize that this is a vast undercounting of the number of pistol braces currently in circulation. A report by the Congressional Research Service puts the estimate much higher; suggesting anywhere from 10 to 40 million pistol stabilizing braces. With so many in circulation, effectively banning firearms with these devices attached would be the largest confiscatory firearm regulation in the history of the United States.
...
More than one year since the comment period ended, and a year-and-a-half since the original proposed rulemaking, it is still unclear when, or how, the new rule will be implemented.
In January of this year, we reported, in a story on different rules Biden’s ATF had put in place, that the regulations page for the proposed stabilizing brace rule indicated it would be finalized in August.
That didn’t happen.
Now the regulations page says “Final Action” will take place on “12/00/2022.” What date that actually signifies is unclear, but it would appear the final rule remains in a holding pattern.
There may be other complications facing Biden’s ATF when it comes to this pending rule, other than the general complexity and poor optics of potentially criminalizing millions of Americans (especially disabled veterans) for owning items that same ATF previously said they could legally acquire and own.
The rule has now been transferred to the Office of Information and Regulatory Affairs for review. That means that the final rule could be posted in the federal register in the coming days.
The article goes on to note that Jim Jordan (R-Ohio) will House Judiciary Chairman when the House convenes next month, and Jordan has already called new BATFE independent and unilateral gun rules "a deliberate attempt to usurp the authority of Congress and infringe on American citizens’ fundamental Second Amendment rights." He sent a letter to BATFE director Steve Dettelbach that included, "Through its proposed rule, ATF seeks to subject stabilizing braces to GCA criminal penalties and NFA regulation without Congressional prohibition of the underlying activity."
Fingers crossed that the loss of the dimocrat House majority plus indications that SCOTUS could be inclined to rule in favor reigning in rulemaking that may exceed Constitutional authority--and given that it's already December 12--may convince the BATFE to sit on their hands for a while rather than attempt to do something incredibly stupid. Up to 40 million pistol stabilizing braces already sold? Can you imagine the nightmare? Even if it's 10 million and half of those want to submit paperwork to keep their previously completely-legal-to-purchase firearms, the ATF would be swamped logistically trying to handle all the NFA paperwork and stamps.
And that's what I mean when I say they just don't understand logistics.
Rafe wrote: ↑Mon Dec 12, 2022 3:56 pm
indications that SCOTUS could be inclined to rule in favor reigning in rulemaking that may exceed Constitutional authority
They already have, in West Virginia v. Environmental Protection Agency this past summer. Yet all the various agencies continue to plow ahead with their arbitrary rulemaking. They're going to have to get beat down again and again. Only if I was an attorney, I'd be set to make some major bank for years to come with all these sort of fights.
On January 13, 2023, the Attorney General signed ATF final rule 2021R-08F, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces,’” amending ATF’s regulations to clarify when a rifle is designed, made, and intended to be fired from the shoulder.
One of the requirements of individual “Responsible Persons” registration is electronic fingerprint cards. Where is the best place to get these done?
I have an AR pistol that I need to reluctantly register as a SBR.
On January 13, 2023, the Attorney General signed ATF final rule 2021R-08F, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces,’” amending ATF’s regulations to clarify when a rifle is designed, made, and intended to be fired from the shoulder.
One of the requirements of individual “Responsible Persons” registration is electronic fingerprint cards. Where is the best place to get these done?
I have an AR pistol that I need to reluctantly register as a SBR.
I just sent you a PM with details.
“Hard times create strong men. Strong men create good times. Good times create weak men. And, weak men create hard times.”
When does it get entered into the Federal Registry? Or has it already? When does/did the clock start ticking?
I am most certain I'm going to need some help figuring all this out.
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On January 13, 2023, the Attorney General signed ATF final rule 2021R-08F, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces,’” amending ATF’s regulations to clarify when a rifle is designed, made, and intended to be fired from the shoulder.
One of the requirements of individual “Responsible Persons” registration is electronic fingerprint cards. Where is the best place to get these done?
I have an AR pistol that I need to reluctantly register as a SBR.
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LDB415 wrote: ↑Fri Jun 11, 2021 6:16 pm
It seems to be nothing but a blatant violation of the Second Amendment created to make millions of honest citizens into criminals and to allow confiscation, the first of what will become many confiscations, of legal weapons. It brings to mind the book Unintended Consequences by John Ross.
1. IF the above video is correct.
2. IF 2nd Amendment is a second for our God given rights
3. IF we really believe the government is coming after our guns.
4. Then the million dollar question - then what do we do?
What do we do?
The previous post recommended a book which some consider instructive.
Fiction, of course. Highly recommend it.
Personally, if I owned an AR pistol with a diminutive shoulder stock/pistol brace, I would remove it, making the pistol continue to be legal.
That pistol brace would work fine on one of my 16" carbines, where it would be known as a "stock".
In fact, the model I had in mind would allow a much great LOP than the standard 6-position stock. My long arms would appreciate it.
So, no "constructive possession" issues.
For a constitutional right that "Shall Not Be Infringed", it sure has a lot of U.S. Code infringement.
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“Sometimes there is no alternative to uncertainty except to await the arrival of more and better data.” C. Wunsch
