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ATF 41P Published in Federal Register

Caution Bureaucrats at WorkJosh Prince has the story. This starts the clock ticking, causing the regulation to take effect on July 13, 2016. He has created a website called Fight ATF 41P. At this point, it appears that Prince’s initial analysis is still valid, and we didn’t have any surprises sprung on us between the rule published by ATF and in the Federal Register. There was a lot of discussion on this topic when it originally came up the other week, and many were disappointed that Form 1s and Form 4s could no longer be e-filed for trusts and corporations.

The reason we ended up with 41P in the first place is because so many people were using trusts to get around the CLEO signoff requirement that ATF was overwhelmed with processing trusts, since trusts had to be vetted to ensure there were no problems with it, and there often were. ATF had been saying in NRA’s Firearms Law seminar for a while that they were looking carefully at the CLEO requirement, including possibly eliminating it, to cut down on the number of trusts. Unfortunately for ATF, there’s also constructive possession issues with NFA items that is likely to cause trusts to remain popular. For these reasons, it can’t really be argued that use of trusts for NFA items is a form of “malicious compliance,” but it certainly has the same features. One of the key objections to 41P is that it’s not abundantly clear who responsible persons are. It’s probably wise advice to take the broad view there. I don’t see any reason not to replace one headache at ATF with another.

Do You Support a Constitutional Convention?

Early in the 20th Century, the Progressives ran through a slew of Constitutional Amendments, including authorizing an income tax, direct election of Senators, Prohibition, and Women’s Suffrage. Many conservatives are calling for a Constitutional Convention of the States, where Amendments would be directly proposed. We discussed this a few weeks ago in regards to Texas Governor Greg Abbott’s proposals. Such a convention could provide an opportunity to clarify the rights protected by the Second Amendment, and make it clear to the courts the right is to be taken seriously. Now Glenn Reynolds of Instapundit fame has an article in USA Today talking about the idea of a new Constitutional Convention.

As I said, I have my doubts about Abbott’s proposals. I find many of them self-serving from a politician’s point of view. For instance, we shouldn’t make it harder for judges to strike down unconstitutional laws, which Abbott’s proposals would do.

Like Prof. Reynolds, I’m not quite ready to endorse the idea of another convention, but it’s starting to sound like it’s not such a bad idea. When you consider that any proposed amendments would still need to be ratified by 3/4 of the states, it doesn’t sound quite as dangerous as it could be if we just had to eat whatever came out of the sausage grinder.

What do you think? Should we emulate the progressives inaugurate our young century with a flurry of constitutional amendments?

Jim Geraghty on Smaller Government

Jim Geraghty’s “Morning Jolt” is one of my my many sources of news, but I thought yesterday he made a good point in a rant about why GOP primary voters weren’t looking to give Bobby Jindal much of a chance (personally, I thought Jindal cozied up to the religious right too early and too hard):

See, a lot of us conservatives walk around in a reassuring trance believing that people like and want small government. Most people don’t. At most, they like and want small government for other people. Farmers like farm subsidies, defense-contractor employees like big spending by the Pentagon, most senior citizens explode at the slightest mention of cuts to Social Security or Medicare. Most self-identified conservatives not only don’t fight for smaller government, they fight against it when it personally impacts them. And then they turn around and complain that lawmakers never manage to reduce the size of government.

That’s pretty much spot on, unfortunately.

Cornyn Introducing New Mental Health Bill

We’ll Be Watching for Language, since I have not seen any yet. John Cornyn is introducing the “Mental Health and Safe Communities Act” today, which the NRA is already endorsing. It looks like a mix of straight-up mental health funding, along with some more incentives for reporting mental health firearm disabilities to the FBI. Without language, I don’t have much analysis to offer, except that we’ve seen several of these reporting bills become law, and there are several states that still aren’t reporting. I don’t know how much more incentive can be offered, and the feds can’t force them to report anything.

Usually you see this kind of thing run when there’s lawmakers who for one reason or another, want some cover from the “something must be done!” crowd, so they can argue they did “something.” I do know Bloomberg is trying to run a competing bill that, needless to say, probably goes further than this one will.

I sincerely hope this isn’t a sign that politicians are becoming afraid of Bloomberg’s money. In the past, the gun control movement hasn’t had the money to run “Congressman Spineless voted against keeping guns out of the hands of crazy people, and against commonsense gun reforms that will save the lives of our children. Send Congressman Spinless a message this fall; our children are more important than the evil gun lobby.” Bloomberg’s money changes that.

The Gift that Keeps on Giving

Well, well, well… I guess you can add terrorists to the list of people Fast and Furious was arming. I wish I could say, “It’s amazing no one has gone to jail over this,” but it’s not surprising. Accountability in government has become a quaint notion. I’m particularly curious about this:

Soofi’s attempt to buy a gun caught the attention of authorities, who slapped a seven-day hold on the transaction, according to his Feb. 24, 2010, firearms transaction record, which was reviewed by the Los Angeles Times. Then, for reasons that remain unclear, the hold was lifted after 24 hours, and Soofi got the 9-millimeter.

There’s no provision in the Brady Act for a seven day hold. There can be a 72 hour hold while the case is reviewed. After that the dealer can go ahead under a “default proceed.” In this case, the sale was cleared after 24 hours. Senator Ron Johnson (R-WI) is demanding to know what the reason for the hold was, why the sale was cleared, and why the purchase was allowed to go ahead. The FBI is declining to comment. I would tend to think they’d be eager to comment if this was just an ordinary NICS issue.

Happy Independence Day

I hope everyone has a happy and safe Independence Day. Yesterday I went to the Amish market to pick up some spare ribs. I just St. Louis cut them and put them on the smoker. The tips I cook on the lower rack of the smoker. I’ll pick all the inedibles out of the tips, and then find some creative way way to use them.

But let’s not forget what the holiday is really about, especially as polls show that Americans are losing pride in their country. I have to admit that these days, I’m not really feeling it either. It’s worthwhile to take a look at the injuries and usurpations and see how many our current federal leviathan and it’s current White House occupant is guilty of:

  • He has refused his Assent to Laws, the most wholesome and necessary for the public good. [Obama doesn’t have much of a veto record, actually]
  • He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. [Check] [Check]
  • He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. [Not really relevant in our current federal system]
  • He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. [Fatiguing us into compliance? Never!]
  • He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. [Our system doesn’t allow this.]
  • He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within. [Again, our system doesn’t allow this.]
  • He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands. [Not really relevant in the modern context]
  • He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. [The constitution does this in our system.]
  • He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. [Nope. Our current Supreme Court has self-immolated.]
  • He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. [Check, check, oh hell yes check]
    He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. [Check, but every President since FDR has done this.]
    He has affected to render the Military independent of and superior to the Civil power. [Not yet, thank God.]
  • He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
    • For Quartering large bodies of armed troops among us: [Do these assholes count?]
    • For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States: [Check. Just ask the people at Waco, or the Terry family.]
    • For cutting off our Trade with all parts of the world: [Nope]
    • For imposing Taxes on us without our Consent: [Obamacare, It’s a tax!]
    • For depriving us in many cases, of the benefits of Trial by Jury: [Check]
    • For transporting us beyond Seas to be tried for pretended offences [Check]
    • For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: [Pretty specific to the time.]
    • For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: [Fundamentally transformed]
    • For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. [Fortunately, no]
  • He has abdicated Government here, by declaring us out of his Protection and waging War against us. [No]
  • He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. [No, at least not literally]
  • He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. [Nope]
  • He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. [Impressment isn’t happening today]
  • He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. [Not literally, but I could rewrite this to apply to today’s context:
    He has excited domestic strife among us, and has endeavored to bring on the inhabitants of our flyover states, the merciless Chicago political savages, whose known rule of politics, is an undistinguished destruction of all all competing ideas and conditions.]

So really, we’re not in as bad a shape as we’d like to think most days of the week, if you go by the standards of our founders. The only one Obama is really clearly guilty of is “He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.” But I’d argue Bush was just as guilty of that as well. The federal government is pretty clearly guilty of unaccountability for bureaucrats who make mistakes, but it’s been that way for a while. The other thing is, if we really decide we don’t like it, we can change it without a revolution. But an unfortunate fact is that too many Americans like big government.

The courts have taken us this far, and no farther

It’s become obvious in the past few years that the federal appellate judiciary is generally hostile to expanding firearms rights, and that SCOTUS is unwilling to push the matter. It’s been a question in my mind as to why that might be, and I am examining some of my preconceptions about which Justices voted to grant cert. and why.

I’ve assumed, as did most people, that the majorities in both cases included the justices who granted cert. But, what if that’s not the case? In particular, what if Justice Roberts did not vote to grant cert, and what if instead one or more of the dissenters voted to grant cert. in Heller to take the opportunity to stop, once and for all, the individual rights interpretation, and then in McDonald to prevent the application of Heller to the states?

I infer from the most recent two decisions (King v. Burwell and Obergefell v. Hodges), as well as previous statements and decisions, that Justice Roberts really does not want to change the status quo when he thinks that the legislature should act instead. So, he votes against cert. so the courts don’t have to get involved in what he sees as a political decision, but when the question comes up anyway, he votes pro-rights in a fit of constitutional conscience. Meanwhile, the anti-gun justices went 0 for 2 in convincing their fellows of the rightness of their position, so they’re no longer interested in taking the third pitch, leaving Justices Thomas, Scalia, and Alito alone to vote to grant cert.

This isn’t my only theory of Justice Roberts and the missing cert. vote, it could be that he saw Heller as necessary and McDonald as sufficient to put the question back to the states (or that as of late the states are making strides on their own and SCOTUS should not intervene).

At any rate, we need to stop relying on the courts and continue to move in the legislatures. At the state level, this is already happening. We’ve suffered some reverses (WA and OR), mostly due to Bloomberg, but there’s a limit to how effective money can be. The important thing is, not to go too far, too fast. The NRA is throwing its political weight behind national reciprocity, which has come tantalizingly close to passing in previous congresses that were less obviously pro-rights. Will it be enough to override a veto? Maybe not, but it sets a marker. If a lawmaker votes Yea on this and this president vetos it, that lawmaker has to explain why he changed his mind in a subsequent vote. Once national reciprocity happens, then we can start working on the real prize; forcing shall-issue and “self-defense is good cause.”. FOPA proves that the federal government can force shall-issue, after all, they forced it for retired LEOs. They ought to be similarly able to force states to match NCIS’s timelines for completing background checks and force the states to consider self-defense as a “good cause” or “in the interests of public safety.” All of that theoretically leaves the management of purchase and carry at the state level, while requiring them to treat the RKBA as an actual right. Congress has the enforcement clause of the 14th amendment to justify this, too, no need to muck around with Commerce Clause.

This won’t happen soon, and it won’t happen with a hostile administration in the White House. So, just remember, elections have consequences (as our Chief Justice just reminded us).

Best Gift Ever to the GOP

The Supreme Court has made gay marriage legal everywhere in the United States, thus giving the Republican Party a huge gift. The truth is that opinion on this issue has been breaking in favor of gay marriage for the past decade, and it’s only accelerating. The political fight over this issue risked losing an entire generation to the Democratic Party, since a lot of millennials are single issue voters when it comes to this issue. The Supreme Court certainly has not put this issue to rest, because we’re still going to argue over cakes, but for the most part it’s now off the table politically. I feel this will soon become a settled issue.

Pennsylvania was not a state that had legislatively enacted gay marriage, and it was not going to as long as the GOP controls the legislature. The GOP now controls the legislature at historic levels. I don’t think Kathleen Kane is endearing herself to many people these days. Things look good for the GOP in Pennsylvania for the time being, despite the loss of the governorship. I thought the gay marriage issue was likely the biggest threat to the GOP majority in the long term, and now that’s off the table. While I’m sure Rep. Daryl Metcalfe won’t be thanking Justice Kennedy any time soon, he probably should. The GOP was in a Catch 22. It couldn’t mellow much on gay marriage without risking the loss of evangelicals, but it also couldn’t keep being obstinate on the issue and expect young people not to close their minds to whatever else the GOP might have to say.

I have long been in favor of legalizing gay marriage (I supported it before Obama and Hillary), but preferred that it be accomplished legislatively rather than through the courts. But I’d much rather be pissed at the GOP because they are stupid, venal, and ineffective rather than because they are taking the ship down over this long-term losing issue.

An Old Idea Catches on with the Left

It used to be gun rights advocates were the ones calling for the abolition of the Bureau of Alcohol, Tobacco, and Firearms. Now progressives are catching on to what a dandy idea it really would be to roll the ATF into the FBI. Why? Because this would be a disaster for gun rights, and they are starting to figure that out.

The FBI has a long, sorry history of unspeakable abuses against the civil liberties of Americans, and along with that is a history of getting away with it. Not only do they get away with it, but they get away with it while making the public and politicians adore them. The FBI is much more competent at manipulating lawmakers, policymakers, judges, and juries to get what they want, and if they take on ATF’s functions, what they will want are more gun control laws.

I think it was a mistake to put even part of ATF under DoJ dominion, and you can thank Republicans for that one. ATF’s role should be that of a regulatory and tax collecting agency. It should have the culture of a regulator rather than an enforcer. Sure, in the days when even the Department of Education has SWAT teams, there will always be “the enforcers” in any regulatory agency, but the FBI have no regulatory role, they are only enforcers and domestic spies. The FBI is very good at railroading people if they decide to target you. Remember, this is an agency started by one of the most dangerous men in the history of this country.

Obama Administration Restricts Military Equipment to Police

Bob Owens is reporting the Obama Administration has announced restrictions on the federal program to deliver surplus military equipment to police departments. I have mixed feelings about this. On the one hand, I do tend to think making the department go to their civilian overseers for approval is not unreasonable. On the other hand, I think it’s not a bad thing, generally speaking, for this equipment to end up widely distributed to local communities, rather than just setting in federal government warehouses. Even if you’re a real wookie suiter “insurrectionist,” it’d be a hell of a lot easier to liberate equipment from your local PD than it would be from the feds if the S were to ever HTF.

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