Garland v Cargill on Bump Stocks: Now What?

 The just released Supreme Court decision on bump stocks, i.e., 22-976 Garland v Cargill, has resulted in a lot of politically charged and deceptive press releases, comments, and tweets by various people. But it really is simple to understand. The 1934 National Firearms Act (NFA, or The Act) narrowly defined "machine guns", aka fully automatic weapons. Under the Trump administration in the aftermath of the Las Vegas massacre, President Trump asked the Bureau of Alcohol, Tobacco, and Firearms to figure out a way to regulate bump stocks under The Act. Simply put, The Act was too narrowly written to allow this. Even the late Senator Feinstein agreed and was referenced in the majority opinion as saying it would take an act of Congress. Bottom line? It is up to Congress to amend the NFA if it wishes to cover these devices. That is actually what Justice Alito suggested in his concurrence.

As far as why this came about? The NFA explicitly said that an automatic weapon was "...any weapon, which shoots, or is designed to shoot, automatically or semi-automatically, more than one shot, without manual reloading, by a single function of the trigger". A semiautomatic rifle, meanwhile, “requires a separate pull of the trigger to fire each cartridge.” For almost a century, this definition has been accepted as applying to machine guns, i.e, those guns which when the trigger is depressed and held down, the gun continues to fire until the gun runs out of ammunition or the trigger is released. A current example is a Glock pistol equipped with a "Glock Switch", basically an auto-sear. But in the case of a bump stock, the trigger is pressed and released for each individual shot. What the bump stock does is harness the energy of the recoil, coupled with pushing the gun forward, to hasten the process of trigger pull and "trigger reset" by careful manipulation. Simply put, bump stocks do not meet the definition in The Act as machine guns. Bump stocks are more accurately called "trigger accelerators" in that they are a class of devices that speed up the semiautomatic action to simulate automatic fire. They do not, as a matter of technical definition, legally meet the definition of a machine gun.

The Supreme Court did not endorse bump stocks in its ruling. The Court said that these attachments, i.e., trigger accelerators, fall outside the existing law and that the law needed amending by Congress if they are to be covered. This really was a separation of powers case.  Call bump stocks a loophole, sure. The Court said that the Executive Branch cannot re-write the law to close a loophole where the law was so narrowly written. Clearly, reading the U.S. Constitution, amending Federal law falls exclusively within the role of Congress. An executive agency that reports to the President cannot re-write Federal law. (and for those who disagree, imagine giving a future President Trump this power.)

One can make the argument that bump stocks and similar devices definitely violate the spirit of the law, i.e., the clear intent of The Act, but that the 1934 Congress did not foresee these work-arounds. I agree with that perspective. But the Court chose to rule on what The Act said, not what could be interpreted. And I go back to my last comment in the previous paragraph about giving the Executive Branch too much leash.

As far as a Second Amendment argument, which was not even relevant in this case, the Supreme Court, in U.S. v Miller, noted that unless a weapon "...has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument...". I note that no U.S forces or reserves have now or ever used bump stocks. Further, they make shooting wildly inaccurate (recall the Las Vegas shooter was randomly spraying bullets at a whole field of people, not an individual target), hence bump stocks are not likely useful for personal defense. So while they may be fun as an amusement attachment, they are not likely protected. And given the potential for mayhem and the legislative hazards of moving the legal goalposts of Federal law with work-arounds, bumpstocks are not worth fighting over. At least in my opinion.

In 2017 in the aftermath of the Las Vegas mass shooting where a killer armed with bump stock equipped semiautomatic rifles massacred scores of people, even the National Rifle Association and prominent Republicans called for these devices to be regulated. But it was far easier to punt the job to a Federal agency than for GOP members to answer to their constituents for their support of a gun control law. Hence, in this and any other contentious issue, we increasingly govern by executive order or creative rule making. That's what needs to change. Members of Congress have to put their votes where their mouths are, so Congress has to do its job again. The U.S. is supposed to be governed by a triad: legislative, judicial, and executive. We've sawn off one leg.

BLM proposes revamp of shooting areas on public lands in Santa Fe County

 Copying this from the Bureau of Land Management page for added visibility. For the original, go HERE.

In order to ensure the safety of visitors to public lands and reduce urban interface and user conflicts adjacent to private lands and public trails, the Bureau of Land Management (BLM) Taos Field Office proposes to close three areas to recreational shooting and develop shooting ranges on public lands in the Santa Fe area. The BLM is collaborating with Santa Fe County, the New Mexico Department of Game and Fish, Santa Fe National Forest, and the U.S. Fish and Wildlife Service to consider options for resolving existing conflicts and providing for the enjoyment of public lands by all users, including those seeking safe opportunities for target shooting.  

The project proposes restoring the currently used, but undeveloped shooting locations by planting vegetation and removing the accumulation of lead waste. With the relocation of shooting to developed ranges, the BLM also proposes to apply one-mile buffers along certain existing roads where recreational shooting would be prohibited.  

The BLM will analyze the proposed project in an environmental assessment in compliance with the National Environmental Policy Act, which provides for public involvement. 

Today, the BLM published a notice in the Federal Register announcing its intent to amend the Taos Resource Management plan and apply the one-mile road buffer that would close certain public lands to recreational shooting. The notice also announces a 60-day public scoping period during which the public can provide input on the proposals to be considered during the preparation of the environmental assessment.   

The public may submit input on the proposed project until Oct. 24, 2022. Comments on the proposal may be submitted by the following:  

• BLM National NEPA Register (ePlanning): https://eplanning.blm.gov/eplanning-ui/project/2013605/510 
• Mail:  Bureau of Land Management; Attn: Brad Higdon; 1024 Paseo del Pueblo Sur; Taos, NM 87571.  

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.  

For more information on the NEPA process, please contact Project Manager Brad Higdon at the Taos Field Office at (575) 751-4725 or blm_nm_tafo_admin@blm.gov.

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The BLM manages more than 245 million acres of public land located primarily in 12 western states, including Alaska, on behalf of the American people. The BLM also administers 700 million acres of sub-surface mineral estate throughout the nation. Our mission is to sustain the health, diversity, and productivity of America’s public lands for the use and enjoyment of present and future generations.

Use of Deadly Force

 Mas Ayoob has put out a lot of videos with the Wilson Combat Channel. Here are some I suggest for anyone who bought a firearm for self defense during the pandemic. There are many others. Go check out the Wilson Combat Channel, and by all means, subscribe.

The Facts About Stand Your Ground Laws

Why That Safe Storage Bill Died

 I sent this to the Albuquerque Journal after D'Val Westphal seemed interested, but it seems to have been dropped down the newspaper's memory hole. Anyway, I'll post it here.

Why did HB 9 fail?

HB-9, the safe firearm storage bill, failed in large part because there was the classic disconnect between rural and urban interests. If such a bill is ever to pass, these parties need to find common ground, recognizing that urban youth violence is a serious problem while protecting legitimate youth firearm activities.

Minors have some legitimate reasons to access firearms.  For example, hunting, informal target shooting, 4H, or any number of organized shooting activities.  Perhaps the bill could have gotten far more buy in if an explicit addition was made to recognize that minors have legitimate reasons, other than armed defense, to be accessing rifles and shotguns (minors cannot possess handguns on their own under most conditions). The bill could have explicitly stated it is not a crime if a minor fetches from storage, with responsible adult approval and appropriate training, a firearm to be used for a lawful youth activity.

Still, the bill improved as it moved forward. In the original, while safe storage was mandated, no credit was given if a minor defeated a good faith storage system.  The substitute bill provided reasonable legal protections for adults by clarifying how "safe storage" would be credited and also gave credit for training. I testified in favor at the House Judiciary Committee hearing. Still, I understand that rural representatives in the House Appropriations and Finance Committee hearing were concerned the bill would impede lawful and traditional youth firearm activities, something that could have been explicitly solved by a minor re-write as I said in the preceding paragraph.

Finally, outreach is critical. I provide to one sponsor academic literature (Crifasi et al and Rowhani-Rhabar et al, and  here is a RAND review of the literature) asserting that to effectively promote safe storage, we must reach out to and enlist gun owner organizations and police to cooperate with gun violence prevention organizations to reinforce safe gun ownership behaviors and further, we must make safe storage devices readily accessible and affordable. Creating new law alone without active followup may have negligible effect because the folks who most desperately need to hear the message usually are out of the loop unless we reach out to them. Charging adults after kids kill kids misses the point of promoting safe storage before any harm is done.

Warning to New Mexico Gun Owners: In Spite of Cannabis Legalization, Users of Cannabis Most Likely Remain Prohibited Persons

 Or, If You Shoot, Don't Toke. If You Toke, Don't Shoot...

Note: I am not a lawyer and the following is not legal advice from an attorney. The closest I get to the bar in New Mexico is Beer Creek Brewing Company.

Much is in the news regarding the legalization of cannabis products for recreational as well as medicinal consumption in New Mexico, even on the Governor's official web site. What is curiously missing in all of this hoopla are the legal issues of which there are several important ones for folks in New Mexico, including issues concerning your employment and your Second Amendment rights.

First, your employer may still prohibit you from using cannabis products and may fire you if you fail a drug test or are caught in possession. This includes at least one local national laboratory and likely other agencies that are tied to Federal contracts and grants. Federal law still considers cannabis a Schedule I substance with no legal, legitimate public use. Plus, employers are allowed, as well as mandated, to have policies and procedures related to safety,depending on what the business does. There are a lot of issues regarding employment but the employer is required to ensure employees are informed of the rules of the game.

Secondly, regardless of what New Mexico legalizes, firearm ownership is in part controlled by Federal law. A cannabis user's Second Amendment right to keep and bear arms is in jeopardy. The Gun Control Act (GCA), codified at 18 U.S.C. § 922(g), makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms or ammunition, to include any person in several categories, one of which is someone "...who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802)" This list includes "marihuana" and "tetrahydrocannabinols", i.e., cannabis.

Indeed on the National Instant Criminal Background (NICS) check form, ATF 4473, is found question 21(e), "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside." So while New Mexico now says you are not "an unlawful user" of cannabis per the language of 18 U.S.C. § 922(g) with regards to state law regarding possession or use of cannabis, Uncle Sam disagrees with regards to a cannabis user's possession or use of firearms per the GCA. Hmmm....maybe this will be litigated more (see below). For now, I think Uncle Sam's opinion is the law but I'm not a Constitutional law scholar and don't play one on TV.

Since cannabis metabolites in your body can result in a positive test for as long as a month, depending on the test, ringing the dope-o-meter should be a concern even if you are not impaired. That is a significant difference from blood alcohol tests. So while you may be perfectly competent to work, drive, or handle a firearm, you can still test positive with serious financial and legal consequences.

For firearms aficionados, simply put, if you attempt to buy a firearm in New Mexico and are a cannabis user, you will likely fail (by Federal standards) or be compelled to lie on the background check form. Lying on the form is in itself a Federal offense. As a cannabis user, even owning or possessing a gun can potentially get you on the wrong side of Federal law (see the Green Light Law Group link below), presumably even if the State authorities look the other way as is the case in at least some Colorado locations. There likely will be some confusion on what shakes out of this, as we can see from Colorado, in this article: "Can you own a gun in Colorado if you smoke pot?" 

"In September 2016, a federal appeals court covering nine western states upheld a ban on firearms sales to residents who hold medical marijuana cards.."

Of course, that was the 9th Circuit, which never saw a gun regulation it didn't approve of, but the Supreme Court denied a petition to appeal the ruling. One can hope for a challenge and a different ruling before our 10th Circuit, which would, I think, be binding here but create a circuit split and possibly compel the SCOTUS to grant certiorari (I'm not a lawyer but I love those big legal words). Don't hold your breath and most of us don't want to volunteer to be that test case.

So the bottom line? Before you head out to the local pot shop, think carefully about these issues. Hopefully, some day, both state and Federal law will be on the same page. The U.S. House just passed a marijuana legalization bill but it faces a rough road in the U.S. Senate. Until the Feds legalize cannabis, caveat emptor.

 More recent stuff here from the Green Light Law Group:  Marijuana Use and Gun Ownership: What You Need to Know (August 2021)

What is a School, Mayor Keller?

 In George Orwell's fictional totalitarian state of Oceania in his book 1984, Inner Party Member O’Brien is torturing an Outer Party member, Winston Smith, into agreeing to a lie. With Smith strapped to a gurney, O'Brien holds up his left hand, its back towards Smith, with O'Brien's thumb hidden and the four fingers extended.
“How many fingers am I holding up, Winston?’
“Four.”
“And if the Party says that it is not four but five – then how many?”
“Four.”

O'Brien responds by administering another electric shock. 

 Like the Inner Party in Oceania, the Keller Administration is torturing Justice into saying a park or a plaza or any other facility they so desire is a "school". Why? So the city can misuse a good law meant to keep people from bringing guns to schools from bringing guns anywhere else in the city the Mayor so desires. Thankfully, DA Raul Torrez has decided that two plus two is indeed four and refused to prosecute on the basis of such an outrageous misuse of the law. I suspect the average jury, also not Inner Party members, would know the difference between a park and a school as well. 

Oh and to put icing on this rotten cake, the only people cited under this deception were two Black men.

This whole episode reeks of what Orwell called "doublespeak". How many fingers am I holding up, Mayor Keller?

Don't Mess With People's Political Signs

 A few days ago someone went around and defaced all the Biden/Harris signs on my street and the Black Lives Matter murals on nearby streets. That is deplorable. Its a Republic and people have the right to support the candidates of their choice and the causes they believe in by posting signs on their property without them being defaced or destroyed. We all get to have opinions.

Well, a couple days after the defacement, I saw this new sign go up. Not that I agree with profanity, but if folks are gonna have a sign war, I guess this is fair game. Maybe some day we can go back to just disagreeing, rather than being disagreeable.