Texas v ATF

[rooster]

Haven’t seen this discussed elsewhere so here we go. ATF submitted motion to dismiss based, and I’m gonna paraphrase here, on the fact that suppressors are not firearms so they get to regulate them via tax code even though the atf says a firearm includes suppressors.


More info found on Reddit although I’ll share the Dropbox link to the court filing here.


As usual **** the feds and their ****ed up logic . They just want to stop people from having a second amendment and will twist logic in whatever way suits them best.

 

[HHollow]

If the NFA stamp were really a tax then the ATF would show a HUGE profit. Let’s start calling it something besides a tax.

 

[HoughMade]

I hate to say this, but given what I read in the filing attached above, the Motion to Dismiss the Second Amended Complaint...the gvt.'s argument is not inconsistent.

Not expressing an opinion on the whole lawsuit, but stating that under the NFA, the definition of "firearm" includes a suppressor ("silencer" in the law) and arguing that a suppressor is not a "bearable arm"- are not logically inconsistent.

 

[Ingomike]

I hate to say this, but given what I read in the filing attached above, the Motion to Dismiss the Second Amended Complaint...the gvt.'s argument is not inconsistent.

Not expressing an opinion on the whole lawsuit, but stating that under the NFA, the definition of "firearm" includes a suppressor ("silencer" in the law) and arguing that a suppressor is not a "bearable arm"- are not logically inconsistent.

Is it logical to say they can regulate a suppressor when attached to a gun, but not when it is off the gun?

 

[HoughMade]

Is it logical to say they can regulate a suppressor when attached to a gun, but not when it is off the gun?

Let me take a step back.

"Logical" only goes so far when we are talking about statutory definitions. When I say that the arguments are not logically inconsistent, I mean that what a "firearm" is defined as under the NFA (and under 18 U.S.C. 921 as well), which includes a (their language) "silencer", controls for the statutes that apply that definition. That definition does not necessarily apply to other areas of law. (and this is only one of the reasons people hate lawyers)

So, let's look at the definition of "firearm" at issue.

From the NFA:

"(a) Firearm. The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term “firearm” shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon."

26 USC § 5845

So, whether it makes sense outside of this specific law or not, the statute defines the term "firearm" to include "any silencer". Can a silencer fire anything? No. Yet, the statute defines it as a firearm.

Hold on, does an original Trapdoor Springfield actually fire a bullet? Absolutely, but it is not a "firearm" for the purposes of this statute.

From 18 USC § 921:

"(3) The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm."

"(25) The terms “firearm silencer” and “firearm muffler” mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication."

18 USC § 921

Again, we have statutory definitions which are not 100% on par with common definitions. The statutory definitions apply specifically to the statutes that reference them. They do not necessarily apply, and probably do not apply, to other areas of law outside the statutes that specifically reference them.

So, and again, I am not commenting on the constitutionality or wisdom of the NFA or 18 USC § 921, but only about how statutes work, the federal government (states do this all the time as well) can define silencers as "firearms" for the purposes of a specific set of statutes, yet that definition does not apply outside of those specific statutes.

So lets look at the 2nd Amendment.: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

First of all, the Amendment does not use the term "firearms" is not used. "Arms" is. More importantly, in looking at the original intent of the Amendment, could the founder have had the specific definitions in 26 USC § 5845 and 18 USC § 921 in mind when this was drafted and ratified? Of course not. These statutes did not exist.

Therefore, it is very clear that "firearms" in these statutes and "Arms" in the Second Amendment are not defined the same way. We look to case law which tried to discern the intent of the founders in order to determine what the definition of "Arms" is.

You want this to be the case. If Congress could define "Arms" for Second Amendment purposes and then say that the 2nd Amendment only applied to the "Arms" it defined as such, they could define the RKBA out of existence. Example- Congress could say that the 2nd Amendment ONLY applies to long arms that existed in 1789. Then, the RKBA only exists for them.

Rather, courts have held that the definition of "Arms" is what it was believed to be (in general) when the 2nd Amendment was ratified:

"Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined "arms" as "[w]eapons of offence, or armour of defence." 1 Dictionary of the English Language 106 (4th ed.)... Timothy Cunningham's important 1771 legal dictionary defined "arms" as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." 1 A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828)...

…Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications… and the Fourth Amendment applies to modern forms of search,… the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

District of Columbia v. Heller, 554 U.S. 570, 581-582 (2008).

Therefore, the question for the Motion to Dismiss above is NOT whether suppressors are defined as "firearms" in statutes. They are and that is irrelevant.

The question as to whether suppressors are protected under the 2nd Amendment is whether they are "bearable arms" as defined above.

So to return to your question, I would phrase it this way- the Second Amendment applies to suppressors when they are integral to a gun (maybe if they are simply attached, but that would take more analysis). The Second Amendment does not apply to them when they are not attached IF the case law following the Heller precedent does not define them, on their own, as "bearable arms".

If they are not "bearable arms"- there is absolutely nothing to keep the fed. gvt. from regulating them under its taxing authority.

In sum, arguing that something if a "firearm", but not a "bearable arm" are not logically inconsistent because those terms have different definitions.

Now....I just have to figure out who to bill for this.

 

[Ingomike]

Now....I just have to figure out who to bill for this.

I will share 50% of all the profits I make from this advice…

 

[JAL]

Is it logical to say they can regulate a suppressor when attached to a gun, but not when it is off the gun?

They're regulating pieces and parts of silencers . . . and things they argue could conceivably be used as a piece or part of one such as rubber/neoprene washers commonly used for vibration dampers and gaskets in all sorts of applications. Raided a dude's home garage when he bought a batch of oil filters. He does work on Diesel trucks as a side hobby. You'd have thought they were taking down a terrorist manufacturing bombs. ATF can claim you're making bombs merely with the contents under your kitchen sink.

"Show me the man and I'll show you the crime."
- Lavrentiy Beria; Joseph Stalin's longest serving NKVD head who murdered many tens of thousands

John

 

[JAL]

Let me take a step back.

. . .

…Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications… and the Fourth Amendment applies to modern forms of search,… the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

District of Columbia v. Heller, 554 U.S. 570, 581-582 (2008).

Therefore, the question for the Motion to Dismiss above is NOT whether suppressors are defined as "firearms" in statutes. They are and that is irrelevant.

The question as to whether suppressors are protected under the 2nd Amendment is whether they are "bearable arms" as defined above.

So to return to your question, I would phrase it this way- the Second Amendment applies to suppressors when they are integral to a gun (maybe if they are simply attached, but that would take more analysis). The Second Amendment does not apply to them when they are not attached IF the case law following the Heller precedent does not define them, on their own, as "bearable arms".

If they are not "bearable arms"- there is absolutely nothing to keep the fed. gvt. from regulating them under its taxing authority.

In sum, arguing that something if a "firearm", but not a "bearable arm" are not logically inconsistent because those terms have different definitions.

Now....I just have to figure out who to bill for this.

See JAIME CAETANO v. MASSACHUSETTS, No. 14–10078. Decided March 21, 2016.
It's a terse per curiam opnion, not very common for SCOTUS.
Jaime Caetano v. Massachusetts (PDF)

Massachusetts argued the electronic stun gun Jaime Caeteno had acquired and already used to defend herself from an attacker (former abusive boyfriend) wasn't a "bearable arm" under the 2nd Amendment as such electronic or electrically powered weapons didn't exist in 1789 -- nor was it a direct derivative of any arms that existed then. SCOTUS cited 2008 Heller and 2010 McDonald in its opinion that clearly stated a "stun gun" is, in fact a "bearable arm". Call me cynical, but it doesn't surprise me that this was Massachusetts doing everything possible like a clown with balloon animals stretching and squeezing everything, and twisting them to create the desired result.

John
(who freely admits he hasn't Shepardized it)

 

[KG1]

I guess then they can regulate any accessories that are not permanently affixed because the individual parts alone are not bearable arms.

Or once they are attached, are they considered to be a bearable arm as a whole with the rifle?

Am I over thinking this or what?

 

[HoughMade]

Am I over thinking this or what?

I think so.

Current 2nd Amendment caselaw does not prohibit all regulation, so just because the 2nd Amendment applies does not mean a law is unconstitutional (again, under current law). For instance- machineguns. Clearly a a bearable arm, yet so far, within what may be regulated.

 

[manifest destiny]

It's a gun. It's not a gun. Well, it's a gun but not a bearable gun. Well, it's a gun in this instance, but not always. Next thing you know ATF will outlaw iron sights. But only when they're attached to the top of a barrel. Or only on Tuesdays. It really just depends on the case and what ATF needs to pull out of their ass to wreck a citizen bad guy.
Thanks to Hough for post #5. Explained well.

 

[rooster]

Let me take a step back.

"Logical" only goes so far when we are talking about statutory definitions. When I say that the arguments are not logically inconsistent, I mean that what a "firearm" is defined as under the NFA (and under 18 U.S.C. 921 as well), which includes a (their language) "silencer", controls for the statutes that apply that definition. That definition does not necessarily apply to other areas of law. (and this is only one of the reasons people hate lawyers)

So, let's look at the definition of "firearm" at issue.

From the NFA:

"(a) Firearm. The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term “firearm” shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon."

26 USC § 5845

So, whether it makes sense outside of this specific law or not, the statute defines the term "firearm" to include "any silencer". Can a silencer fire anything? No. Yet, the statute defines it as a firearm.

Hold on, does an original Trapdoor Springfield actually fire a bullet? Absolutely, but it is not a "firearm" for the purposes of this statute.

From 18 USC § 921:

"(3) The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm."

"(25) The terms “firearm silencer” and “firearm muffler” mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication."

18 USC § 921

Again, we have statutory definitions which are not 100% on par with common definitions. The statutory definitions apply specifically to the statutes that reference them. They do not necessarily apply, and probably do not apply, to other areas of law outside the statutes that specifically reference them.

So, and again, I am not commenting on the constitutionality or wisdom of the NFA or 18 USC § 921, but only about how statutes work, the federal government (states do this all the time as well) can define silencers as "firearms" for the purposes of a specific set of statutes, yet that definition does not apply outside of those specific statutes.

So lets look at the 2nd Amendment.: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

First of all, the Amendment does not use the term "firearms" is not used. "Arms" is. More importantly, in looking at the original intent of the Amendment, could the founder have had the specific definitions in 26 USC § 5845 and 18 USC § 921 in mind when this was drafted and ratified? Of course not. These statutes did not exist.

Therefore, it is very clear that "firearms" in these statutes and "Arms" in the Second Amendment are not defined the same way. We look to case law which tried to discern the intent of the founders in order to determine what the definition of "Arms" is.

You want this to be the case. If Congress could define "Arms" for Second Amendment purposes and then say that the 2nd Amendment only applied to the "Arms" it defined as such, they could define the RKBA out of existence. Example- Congress could say that the 2nd Amendment ONLY applies to long arms that existed in 1789. Then, the RKBA only exists for them.

Rather, courts have held that the definition of "Arms" is what it was believed to be (in general) when the 2nd Amendment was ratified:

"Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined "arms" as "[w]eapons of offence, or armour of defence." 1 Dictionary of the English Language 106 (4th ed.)... Timothy Cunningham's important 1771 legal dictionary defined "arms" as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." 1 A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828)...

…Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications… and the Fourth Amendment applies to modern forms of search,… the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

District of Columbia v. Heller, 554 U.S. 570, 581-582 (2008).

Therefore, the question for the Motion to Dismiss above is NOT whether suppressors are defined as "firearms" in statutes. They are and that is irrelevant.

The question as to whether suppressors are protected under the 2nd Amendment is whether they are "bearable arms" as defined above.

So to return to your question, I would phrase it this way- the Second Amendment applies to suppressors when they are integral to a gun (maybe if they are simply attached, but that would take more analysis). The Second Amendment does not apply to them when they are not attached IF the case law following the Heller precedent does not define them, on their own, as "bearable arms".

If they are not "bearable arms"- there is absolutely nothing to keep the fed. gvt. from regulating them under its taxing authority.

In sum, arguing that something if a "firearm", but not a "bearable arm" are not logically inconsistent because those terms have different definitions.

Now....I just have to figure out who to bill for this.

So if I’m reading this right smart people like Hogue understand the mental gymnastics that the ATF is going through but laypeople think they are stupid and messed up?

Reminds me of this video

 

[HoughMade]

Lay persons are not the audience for the motion. A judge is.

It's kinda like being confused because a law refers to magazines and you think they are talking about where cartridges are fed from, but they are talking about "Newsweek". The same terms have different definitions.

 

[Hatin Since 87]

I think so.

Current 2nd Amendment caselaw does not prohibit all regulation, so just because the 2nd Amendment applies does not mean a law is unconstitutional (again, under current law). For instance- machineguns. Clearly a a bearable arm, yet so far, within what may be regulated.

Maybe im thinking too simplistic, but doesnt shall not be infringed pretty much override any bs caselaw in regards to regulation? I mean, sure, we can nitpick definitions and find historical rulings that give precedent to do so, but the original intention of shall not be infringed should be a huge **** you to anyone trying to pass laws to the contrary, no?


What do i know, im just a hillbilly from morgan county.

 

[KLB]

Double post

Why didn't you just delete it?

 

[Hatin Since 87]

Why didn't you just delete it?

Delete what?

 

[Ingomike]

Why didn't you just delete it?

He didn’t want to lose a post count… LOL

 

[BigRed]

Before I give my thoughts on this matter, I am going to wait for ingo to tell me whether or not the issue at hand is just a range toy and how ceding liberty does not matter.

I hate to say this, but given what I read in the filing attached above, the Motion to Dismiss the Second Amended Complaint...the gvt.'s argument is not inconsistent.

Not expressing an opinion on the whole lawsuit, but stating that under the NFA, the definition of "firearm" includes a suppressor ("silencer" in the law) and arguing that a suppressor is not a "bearable arm"- are not logically inconsistent.

All sarcasm and jokes aside, I still laugh when counsel uses double negatives.

 

[KLB]

Delete what?

 

[Pepi]

It's a gun. It's not a gun. Well, it's a gun but not a bearable gun. Well, it's a gun in this instance, but not always. Next thing you know ATF will outlaw iron sights. But only when they're attached to the top of a barrel. Or only on Tuesdays. It really just depends on the case and what ATF needs to pull out of their ass to wreck a citizen bad guy.
Thanks to Hough for post #5. Explained well.

Shockwave next in line