It turned out exactly what I anticipated it would be, maybe a little less.
Before we go into it, let's actually see what the order says, which is a bit difficult as the actual order isn't published yet, so we don't really know. Nobody does. But a White House press statement has been released, so we can view that. And indeed, given as anything in this area gives rise to a massive flurry or rumors and erroneous statements on all sides, that's really the place to start. So, here's what's on the White House page right now.
Today, the Biden-Harris Administration is announcing six initial actions to address the gun violence public health epidemic. The recent high-profile mass shootings in Boulder – taking the lives of 10 individuals – and Atlanta – taking the lives of eight individuals, including six Asian American women – underscored the relentlessness of this epidemic. Gun violence takes lives and leaves a lasting legacy of trauma in communities every single day in this country, even when it is not on the nightly news. In fact, cities across the country are in the midst of a historic spike in homicides, violence that disproportionately impacts Black and brown Americans. The President is committed to taking action to reduce all forms of gun violence – community violence, mass shootings, domestic violence, and suicide by firearm.
President Biden is reiterating his call for Congress to pass legislation to reduce gun violence. Last month, a bipartisan coalition in the House passed two bills to close loopholes in the gun background check system. Congress should close those loopholes and go further, including by closing “boyfriend” and stalking loopholes that currently allow people found by the courts to be abusers to possess firearms, banning assault weapons and high capacity magazines, repealing gun manufacturers’ immunity from liability, and investing in evidence-based community violence interventions. Congress should also pass an appropriate national “red flag” law, as well as legislation incentivizing states to pass “red flag” laws of their own.
But this Administration will not wait for Congress to act to take its own steps – fully within the Administration’s authority and the Second Amendment – to save lives. Today, the Administration is announcing the following six initial actions:
The Justice Department, within 30 days, will issue a proposed rule to help stop the proliferation of “ghost guns.” We are experiencing a growing problem: criminals are buying kits containing nearly all of the components and directions for finishing a firearm within as little as 30 minutes and using these firearms to commit crimes. When these firearms turn up at crime scenes, they often cannot be traced by law enforcement due to the lack of a serial number. The Justice Department will issue a proposed rule to help stop the proliferation of these firearms.
The Justice Department, within 60 days, will issue a proposed rule to make clear when a device marketed as a stabilizing brace effectively turns a pistol into a short-barreled rifle subject to the requirements of the National Firearms Act. The alleged shooter in the Boulder tragedy last month appears to have used a pistol with an arm brace, which can make a firearm more stable and accurate while still being concealable.
The Justice Department, within 60 days, will publish model “red flag” legislation for states. Red flag laws allow family members or law enforcement to petition for a court order temporarily barring people in crisis from accessing firearms if they present a danger to themselves or others. The President urges Congress to pass an appropriate national “red flag” law, as well as legislation incentivizing states to pass “red flag” laws of their own. In the interim, the Justice Department’s published model legislation will make it easier for states that want to adopt red flag laws to do so.
The Administration is investing in evidence-based community violence interventions. Community violence interventions are proven strategies for reducing gun violence in urban communities through tools other than incarceration. Because cities across the country are experiencing a historic spike in homicides, the Biden-Harris Administration is taking a number of steps to prioritize investment in community violence interventions.
The American Jobs Plan proposes a $5 billion investment over eight years to support community violence intervention programs. A key part of community violence intervention strategies is to help connect individuals to job training and job opportunities.
The U.S. Department of Health and Human Services is organizing a webinar and toolkit to educate states on how they can use Medicaid to reimburse certain community violence intervention programs, like Hospital-Based Violence Interventions.
Five federal agencies are making changes to 26 different programs to direct vital support to community violence intervention programs as quickly as possible. These changes mean we can start increasing investments in community violence interventions as we wait on Congress to appropriate additional funds. Read more about these agency actions here.
The Justice Department will issue an annual report on firearms trafficking. In 2000, the Bureau of Alcohol, Tobacco, and Firearms (ATF) issued a report summarizing information regarding its investigations into firearms trafficking, which is one way firearms are diverted into the illegal market where they can easily end up in the hands of dangerous individuals. Since the report’s publication, states, local, and federal policymakers have relied on its data to better thwart the common channels of firearms trafficking. But there is good reason to believe that firearms trafficking channels have changed since 2000, for example due to the emergence of online sales and proliferation of “ghost guns.” The Justice Department will issue a new, comprehensive report on firearms trafficking and annual updates necessary to give policymakers the information they need to help address firearms trafficking today.
The President will nominate David Chipman to serve as Director of the Bureau of Alcohol, Tobacco, and Firearms. ATF is the key agency enforcing our gun laws, and it needs a confirmed director in order to do the job to the best of its ability. But ATF has not had a confirmed director since 2015. Chipman served at ATF for 25 years and now works to advance commonsense gun safety laws.
Okay, so that's what it actually says. I'd note that the reporting on these have truncated at least one item, but perhaps that's minor.
So, to list what they're really ordering, its' as follows:
- The Justice Department, within 30 days, will issue a proposed rule to help stop the proliferation of “ghost guns.”
- The Justice Department, within 60 days, will issue a proposed rule to make clear when a device marketed as a stabilizing brace effectively turns a pistol into a short-barreled rifle subject to the requirements of the National Firearms Act.
That is, as a practical matter, other than drafting a proposed "red flag" bill for the use of states, about it.
Okay, now how extensive of act is this, and is it really novel? Not much really, and arguably Biden's actions on this are slow in context, as both of the items he proposes are not only well within his executive powers, in spite of what those decrying these actions may be stating, they're probably correct interpretations of the existing laws that have oddly been misinterpreted. Let's take a deeper look at them.
The "pistols" that are really rifles.
The XM177 carbine (submachinegun?) that was used somewhat in Vietnam, but not as much as the movies would have it. The AR556 is shorter than this.
The big part of the orders are, in my view, the reclassification of "pistols" with "arm assistance" into what they really are, short barreled rifles which are covered by the NFA. They've always been just that, but the ATF hasn't been treating them that way, for some reason that's not clear.
Navy Seal with a "Cold Commando", prior to the days of the M4 carbine.
We just recently discussed this as part of our Zeitgeist series. We'll quote from that, in relevant part, here.
A debate on arms
I thought about not commenting about this at all, and when I started this most recent edition to this thread it wasn't here, as that was prior to an insane man's assault on a grocery store in Colorado. But as this is now prominent in the Zeitgeist, the history of this blog would provide for commenting in some form, so I'll do it here.
First, the rush to conclusion.
At the point at which I'm typing this out, we still don't know much about the assault other than its tragic consequences. Both sides in the gun control debate are rushing to conclusions, which means the conclusions will largely be pre made ones rather than any which are the product of analysis. What we do know is this.
* * *
On this, while the press reports have concluded that his purchase of firearms was legal, it's not immediately apparent that this is in fact the case. It would depend on the nature of the conviction, but frankly I'd lean towards his purchase actually having been illegal. If this is the case, the background check system failed to reveal the conviction. Having said that, I'm not firmly attached to that position. This may be such a "simple assault", i.e., fighting, that it wouldn't register. If that's the case, the background system didn't fail. We should assume here it didn't fail.
The firearm used in the event was a Ruger AR-556 pistol.
The AR-556 "pistol" is one of a series of arms produced to dodge the National Firearms Act on short barreled rifles. There's no doubt about this and while somebody no doubt will eventually log in to state otherwise, this recent trend serves no other purpose. This has allowed for the manufacture of very short barreled rifles, marketed pretextually as pistols, and also semi automatic replicas of submachineguns which would otherwise be illegal under US law. This is part of the trend we've noted here before of the AR lead militarization and pseudo militarization (tacti-cool) that has become so prominent in the US.
Indeed, the problem with weapons like the AR-556 pistol is that they make it exceedingly difficult for defenders of firearms to do just that. While fans of the AR15 in general can point to legitimate sporting use for the rifle, finding a real sporting use for a pistol variant of it is extremely difficult to do. Everyone knows that the configuration is simply a dodge around the law. A fan of pistols would be better off with a real pistol, a person who wanted a semi automatic carbine variant of the AR can find one easily. The "pistol" configuration really appeals to a limited market that is buying it mostly based on appearance. This is all less true for collectors who want something like a firing replica of something like the MP40 in semiautomatic, but even there, because the MP40 is a purely military arm, it gets difficult to really make the argument. That puts defenders of the Second Amendment in a difficult position as even the defense argument that can be made has to really yield to an offensive argument. I.e., you can't easily argue you need a AR-556 for self defense. You can argue it, but you'll always be faced with an argument about a conventional pistol being a better choice.
* * *
4. The firearm is a type that's principal appeal is simply its strange looks. While the description will not doubt be "military style", in fact it is not, unless the briefly manufactured armored vehicle port guns are considered, which did pretty closely resemble this sort of weapon.
So what can we draw from that?
Perhaps not much.
Democrats are crying for the passage of gun control bills that will make it through the House, but they won't make it through the Senate. The bill with the broadest support, expanding background check to include all firearms, would not have impacted this whatsoever. This purchased passed the background check and would have passed the proposed expanded one.
More radical measures, such as banning "assault weapons" would have precluded the sale of the AR556 in question. That can be noted. Having said that, there's no reason to believe that a man in this mental condition wouldn't have simply switched to something else. Indeed, no matter how expansive you make such a "ban", it would fail to ban everything that somebody like this would employ. So that would do nothing.
Having said that, in the case of these "pistols" that are now in this category, here actually is something that those who are wondering what can be done by way of Executive Order fits that bill. This is only a "pistol" by regulatory interpretation, and its a strained one at that. The ATF could be directed to reclassify these as long guns as they have features which are overwhelming only appropriate for long guns. That would subject them all to the NFA overnight, which would make the simple retail of them nearly impossible and subject future transfers of them to the NFA. Indeed, it 'd make the current owning of them subject to NFA requirements.
There's more there, but that gets the gist of it.
Army Ranger with Colt Commando, the soldier behind him is carrying a recoiless rifle, so this team is really eccentrically armed. This too is prior to the M4 and prior to BDUs for that matter.
And that gist is that "stabilizing" braces for arms of this type are really little tiny sticks for arms that aren't really pistols, but very short barreled rifles.
When the NFA was passed in the 1930s Congress included in that bill a provision that rifles and shotguns with barrels below a certain length were to be classified in a new class that also included machineguns. Contrary to what some suppose, you can own any of these items, including machineguns, but they're subject to a somewhat hefty tax and registration and re-registration. The NFA has bee indirectly attacked and addressed at the Supreme Court once, but the Court has never directly ruled on its Constitutionality. While some in the firearms community have recently maintained that its unconstitutional, it's almost certain that the Supreme Court would in fact uphold it, and therefore the Herrera Rule applies to to. Wise firearms supporters better not touch it, as the ruling they'd get would open the floodgates to legalized regulation that they don't want.
Vintage Winchester poster of an outdoorsman carrying a Model 94, but it's not the Trappers Model.
Anyhow, at the time that the NFA was passed, there really weren't very many short barreled rifles around. There were some, and Winchester made a semi popular "Trappers Model" in its 1894 that was and is subject to the act. What Congress was really aiming for at the time was "sawed off shotguns" which really were (and are) used in crimes, and pistols with stock attachments, which probably really never were. Indeed, that device remains legal in other countries but is rarely used by anyone as they're of dubious utility.
World War Two Marine with a Model 1897 Winchester riot gun. These were used in World War One and World War Two, and this one was certainly acquired by the Marines during World War One. They are short, but not so short as to be covered by the NFA.
Submachineguns, we'd note, which were just coming on strong at the time, typically have very short barrels and indeed in some languages, such as German, they're referred to as "machine pistols" for that reason. They're really too big to be pistols and the term, while used early on in some English publications, never caught on in English. It's somewhat surprising that they were never called "machine carbines" which is really what they are, but they aren't.
British soldier with a M1928 Thompson Submachinegun early in World War Two. The Thompson is remarkably large for a submachinegun, but its barrel would still be a problem at this length. No matter, as its a submachinegun, its subject to the NFA anyway. The Thompson was advertised as being sold "only on the side of law and order", but their use by criminals during Prohibition was a significant factor in bringing about the NFA.
Anyhow, the NFA basically eliminated short barreled rifles and really short shotguns. For years and years any cutting down of a rifle or shotgun wasn't accepted by the ATF as converting it into a pistol, but somehow the ATF slowly relaxed its interpretation. It did that first with some very small shotguns, but in recent years, as the AR15 Effect took hold, it turned a blind eye to ultra short AR15 carbines. [1]
U.S. Secret Serviceman with a 9mm Israeli Uzi submachinegun. The Uzi is so small that it probably more accurately fits the definition of being a machinepistol. For a time, a semi automatic version of the Uzi was sold in the US as a pistol and without a stock.
Indeed, the NFA not only made really short rifles and shotguns subject to special licensing and taxation, it did the same for stocked pistols. Stocked pistols have never been a big deal in the US market, but they do exist, and the same law addressed them, treating them like very short rifles, shotguns, and machineguns. They are not treated that way in other countries, where they are more common, which is not to say that they are by any means common.[2]
Anyhow, fact of the matter is that weapons like the AR556 are very clearly rifles, with rifle actions and a rifle profile, and not pistols. The "stabilizing" device was there as they're impossible to really effectively shoot, chambered in rifle cartridges as they are, without a stock. They're very short barreled carbines.
The point of al of this is that the ATF could have actually have regulated these firearms in this category all along, and its frankly rather remiss of them on their part that they did not. It's a regulatory failure, and that's the case no matter what your opinion on this topic is one way or another.
Because the ATF dropped the ball on this, again whether you think these arms should be regulated in this fashion or not, the door was open to this dodge around the law, and because of the AR15 Effect weapons based on the AR action that were really extremely short barreled carbines, but marketed as pistols came into being. That's partially, as noted, the ATF's fault, but it's also partially the fault of the AR15 Effect as well, which is what makes them the one of the arms that's most difficult for Second Amendment backers to argue to average people about, even though they're now trying.
The reason for this has already been partially covered here, but to expand out on it, this is a arm for which it is extremely easy for gun control proponents to argue "there's no legitimate use". There probably is, but it's really narrow and can easily be filled by something else. They're definitely not hunting weapons, but as we've already noted, the Second Amendment isn't really about that. They aren't sporting weapons either as they have too much recoil and are too big to compete against conventional pistols in anything. They're not even a very good self defense weapons in almost any situation as they're a lousy combat weapon, being too short for almost any real use. Indeed, the overall failure of the M231 port gun demonstrates that. Nobody liked it.
Indeed, the conventional M16 is not a large weapon and if a person was looking for a 5.56 weapon for self defense, the regular rifle variant of it would serve fine. If a person preferred a carbine, and there are certainly situations in which a carbine would be superior, the civilian variants of the M4 carbine are plenty short. They're actually about as short as a person would ever need, almost always.
I can see where something like the Ruger AR556 could be of use in a few very limited situations, but they'd always be competing with the M4. It might make, for example, a good aircraft survival gun, such as are sometimes found in bush planes. Or if a person regularly drove into very dangerous areas where they needed to keep a rifle concealed, that'd give another example. But that's about it.
At any rate, as they're not banned, but reclassified, it's dangerous to argue that the Second Amendment is imperiled, for those inclined to do so.
Those people, who are now convinced that courts will soon toss this order out, are of the mind that reclassifying these items is an "infringement", but in order to accept that, you have to accept that the NFA classification of short barreled rifles and shotguns itself is a infringement. That, however, has already been to the United States Supreme Court in the case of United States v. Miller, a 1939 Supreme Court case and therefore before United States v. Heller, which generally is the benchmark case on these issues. Heller didn't overrule Miller, however, or at least not openly so. That case holds:
Mr. Justice McREYNOLDS delivered the opinion of the Court.
1 An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton 'did unlawfully, knowingly, willfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearm as required by Section 1132d of Title 26, United States Code, 26 U.S.C.A. § 1132d (Act of June 26, 1934, c. 757, Sec. 5, 48 Stat. 1237), and not having in their possession a stamp-affixed written order for said firearm as provided by Section 1132c, Title 26, United States Code, 26 U.S.C.A. § 1132c (June 26, 1934, c. 757, Sec. 4, 48 Stat. 1237) and the regulations issued under authority of the said Act of Congress known as the 'National Firearms Act' approved June 26, 1934, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.'
2 A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution, U.S.C.A.—'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.' The District Court held that section 11 of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.
3 The cause is here by direct appeal.
4 Considering Sonzinsky v. United States, 1937, 300 U.S. 506, 513, 57 S.Ct. 554, 81 L.Ed. 772, and what was ruled in sundry causes arising under the Harrison Narcotic Act2—United States v. Jin Fuey Moy, 1916, 241 U.S. 394, 36 S.Ct. 658, 60 L.Ed. 1061, Ann.Cas.1917D, 854; United States v. Doremus, 1919, 249 U.S. 86, 94, 39 S.Ct. 214, 63 L.Ed. 493; Linder v. United States, 1925, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819, 39 A.L.R. 229; Alston v. United States, 1927, 274 U.S. 289, 47 S.Ct. 634, 71 L.Ed. 1052; Nigro v. United States, 1928, 276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600—the objection that the Act usurps police power reserved to the States is plainly untenable.
5 In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
6 The Constitution as originally adopted granted to the Congress power—'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, § 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
7. The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.
8 The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
9 Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409 points out 'that king Alfred first settled a national militia in this kingdom' and traces the subsequent development and use of such forces.
10 Adam Smith's Wealth of Nations, Book V. Ch. 1, contains an extended account of the Militia. It is there said: 'Men of republican principles have been jealous of a standing army as dangerous to liberty.' 'In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species of military force.'
11 'The American Colonies In The 17th Century', Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England—
12 'In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.' 'The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.' 'A year later (1632) it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony (Massachusetts).'
13. Also 'Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs. Fines were the penalty for delinquency, whether of towns or individuals. According to the usage of the times, the infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided that each of the former should be armed with a pike, corselet, head-piece, sword, and knapsack. The musketeer should carry a 'good fixed musket,' not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length, a priming wire, scourer, and mould, a sword, rest, bandoleers, one pound of powder, twenty bullets, and two fathoms of match. The law also required that two-thirds of each company should be musketeers.'
14 The General Court of Massachusetts, January Session 1784 (Laws and Resolves 1784, c. 55, pp. 140, 142), provided for the organization and government of the Militia. It directed that the Train Band should 'contain all able bodied men, from sixteen to forty years of age, and the Alarm List, all other men under sixty years of age, * * *.' Also, 'That every non-commissioned officer and private soldier of the said militia not under the controul of parents, masters or guardians, and being of sufficient ability therefor in the judgment of the Selectmen of the town in which he shall dwell, shall equip himself, and be constantly provided with a good fire arm, &c.'
15 By an Act passed April 4, 1786 (Laws 1786, c. 25), the New York Legislature directed: 'That every able-bodied Male Person, being a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are herein after excepted) and who are of the Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat. * * * That every Citizen so enrolled and notified, shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; * * *.'
16 The General Assembly of Virginia, October, 1785 (12 Hening's Statutes c. 1, p. 9 et seq.), declared: 'The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.'
17. It further provided for organization and control of the Militia and directed that 'All free male persons between the ages of eighteen and fifty years,' with certain exceptions, 'shall be inrolled or formed into companies.' 'There shall be a private muster of every company once in two months.'
18 Also that 'Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o'clock in the forenoon, armed, equipped, and accoutred, as follows: * * * every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer. If any private shall make it appear to the satisfaction of the court hereafter to be appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein required, such court shall cause them to be purchased out of the money arising from delinquents.'
19. Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.
20 In the margin some of the more important opinions and comments by writers are cited.3
21 We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings.
22 Reversed and remanded.
23 Mr. Justice DOUGLAS took no part in the consideration or decision of this cause.
1 Act of June 26, 1934, c. 757, 48 Stat. 1236—1240, 26 U.S.C.A. § 1132 et seq.:
'That for the purposes of (sections 1132 to 1132q) this Act—
'Sec. 1 (Section 1132). (a) The term 'firearm' means a shotgun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition, (The Act of April 10, 1936, c. 169, 49 Stat. 1192, 26 U.S.C.A. § 1132, added the words) but does not include any rifle which is within the foregoing provisions solely by reason of the length of its barrel if the caliber of such rifle is .22 or smaller and if its barrel is sixteen inches or more in length.
'Sec. 3 (§ 1132b). (a) There shall be levied, collected, and paid upon firearms transferred in the continental United States a tax at the rate of $200 for each firearm, such tax to be paid by the transferor, and to be represented by appropriate stamps to be provided by the Commissioner, with the approval of the Secretary; and the stamps herein provided shall be affixed to the order for such firearm, hereinafter provided for. The tax imposed by this section shall be in addition to any import duty imposed on such firearm.
'Sec. 4 (§ 1132c). (a) It shall be unlawful for any person to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article, on an application form issued in blank in duplicate for that purpose by the Commissioner. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under (sections 1132 to 1132q) this Act: Provided, That, if the applicant is an individual, such identification shall include fingerprints and a photograph thereof.
'(c) Every person so transferring a firearm shall set forth in each copy of such order the manufacturer's number or other mark identifying such firearm, and shall forward a copy of such order to the Commissioner. The original thereof with stamps affixed, shall be returned to the applicant.
'(d) No person shall transfer a firearm which has previously been transferred on or after the (thirtieth day after June 26, 1934), effective date of this Act, unless such person, in addition to complying with subsection (c), transfers therewith the stamp-affixed order provided for in this section for each such prior transfer, in compliance with such regulations as may be prescribed under (sections 1132 to 1132q) this Act for proof of payment of all taxes on such firearms.
'Sec. 5 (§ 1132d). (a) Within sixty days after the (thirtieth day after June 26, 1934) effective date of this Act every person possessing a firearm shall register, with the collector of the district in which he resides, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof: Provided, That no person shall be required to register under this section with respect to any firearm acquired after the (thirtieth day after June 26, 1934) effective date of, and in conformity with the provisions of, (sections 1132 to 1132q) this Act.
'Sec. 6 (§ 1132e). It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of section (1132b or 1132c) 3 or 4 of this Act.
'Sec. 11 (§ 1132j). It shall be unlawful for any person who is required to register as provided in section (§ 1132d) 5 hereof and who shall not have so registered, or any other person who has not in his possession a stamp-affixed order as provided in section (1132c of this title) 4 hereof, to ship, carry, or deliver any firearm in interstate commerce.
'Sec. 12 (§ 1132k). The Commissioner, with the approval of the Secretary, shall prescribe such rules and regulations as may be necessary for carrying the provisions of (sections 1132 to 1132q) this Act into effect.
'Sec. 14 (§ 1132m). Any person who violates or fails to comply with any of the requirements of (sections 1132 to 1132q) this Act shall, upon conviction, be fined not more than $2,000 or be imprisoned for not more than five years, or both, in the discretion of the court.
'Sec. 16 (§ 1132o). If any provision of (sections 1132 to 1132q) this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of (sections 1132 to 1132q) the Act, and the application of such provision to other persons or circumstances, shall not be affected thereby.
'Sec. 18 (§ 1132q). This (chapter (1132 to 1132q)) Act may be cited as the 'National Firearms Act."
2 Act December 17, 1914, c. 1, 38 Stat. 785, February 24, 1919, c. 18, 40 Stat. 1057, 1130, 26 U.S.C.A. §§ 1040—1054, 1383 1391.
3 Concerning The Militia—Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615; Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326, 41 L.Ed. 715; Fife v. State, 31 Ark. 455, 25 Am.Rep. 556; Jeffers v. Fair, 33 Ga. 347; Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 3 L.R.A., N.S., 168, 115 Am.St.Rep. 196, 7 Ann.Cas. 925; People v. Brown, 253 Mich. 537, 235 N.W. 245, 82 A.L.R. 341; Aymette v. State, 2 Humph., Tenn., 154; State v. Duke, 42 Tex. 455; State v. Workman, 35 W.Va. 367, 14 S.E. 9, 14 L.R.A. 600; Cooley's Constitutional Limitations, Vol. 1, p. 729; Story on The Constitution, 5th Ed., Vol. 2, p. 646; Encyclopedia of the Social Sciences, Vol. X, p. 471, 474.
Now, I've set the entire case out, but let's consider this again in the light of Heller. Heller recognized an individual right to keep and bare arms. Miller didn't say there wasn't one, but it also said short barreled shotguns weren't part of it.
Which is why those saying "let's sue" are really treading dangerous ground.
A lawsuit on this issue is almost certainly likely to fail. One lesson that should be taken from Miller is that the Court will step around an issue and bend on it when it fits the spirt of the times. The NFA had only been passed in 1934 and it came about due to Prohibition era violence, which had seen the use of automatic weapons Short barreled weapons no doubt figured into that as well, as "sawed off shotguns" have long been a favorite for certain types of combat. Indeed, the scriveners of this opinion stated an absolute fiction when they stated that "Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Short barreled shotguns had just been used by the US in the Great War, and had a role, mostly for Southern cavalry, during the Civil War.
Of course, it may have helped the justices to reach that opinion because Miller didn't send anyone to argue for him, giving the Court pretty wide leeway, but it seems clear that they simply ignored recent history.
There's no guaranty they wont' do so again.
Indeed, the Supreme Court of the 1930s had just survived a court packing scheme by Roosevelt, and the liberal left is trying one again right now. Biden, among his orders, has just issued one seeking to study that proposition, fulfilling a campaign promise.
Anyhow, what's most likely to occur on any challenge here is a finding that this reclassification is within the Executive Branch's authority under the NFA and leave it at that. If the NFA is directly challenged, however, the result will almost certainly be a finding that its simply a tax measure, which is how the Miller Court approached it, and which is how the Roberts Court approached "Obamacare", and to uphold it.
Do Second Amendment backers want that? Here the Herrera Effect could well rule the day and the result would be to open the door to gun control through classification and taxation.[3] I.e., if a case upheld the approach in Miller, what's to keep gun control proponents in Congress from arguing that pistols should be subject to a similar taxation and regulation scheme?
"Ghost Guns"
With that in mind, let's turn to "ghost guns" which is the name tagged to kits in which a person can build their own firearm and, theoretically, avoid having one with a serial number.
To start with, it simply escapes me why people are so concerned with serial numbers. It's really fairly absurd under the US system. Yes, manufacturers register their serial numbers, and wholesalers record and keep those numbers, as do retail venders. But that system of registration is so awkward, on purpose, it hardly serves as some sort of master list that the police will use to seize firearms. But that's exactly what some people seem to fear, and that's exactly why they are enamored with ghost guns. By making them themselves, they imagine some future totalitarian state won't know they have guns.
That pretty much ignores the fact that at the state level, gun control in the US is going the other way. It's mostly not getting stricter, but more lax. There are exceptions, to be sure, but if you live in one of those areas and your ghost gun is covered by a regulation, you pretty much can't use it. That makes it useless, save for those who imagine they'll bring it back out of hiding for some sort of libertarian future revolution, which isn't going to happen.
Be that as it may, here too, this has, it seems to me, pretty clearly always been subject to regulation. The legal basis, its being made locally and won't enter interstate commerce, is pretty thing for these firearms.
The approach being taken by the administration, that they're firearms as kits and can be required to be serial numbered is already plowed ground and is the approach that the ATF takes on other kids. Indeed, various firearms manufactures have long sold components that can be used to make a firearms while taking the approach that the action needs to be serial numbered and is a firearm. The ATF at one time and went further, although it later changed its mind, and held that any part of a machinegun was a machinegun and had to be registered under the NFA, which is a very similar approach.
The difference between prior kids and "ghost guns" are that the kids are 80% finished, not 100%, providing the legal fiction that they haven't yet reached the state where they need to be serial numbered. Well, now they will.
The reason that these have received attention is that anyone can order the parts through the mail and, if they have sufficient skills, complete the weapon. As noted, most of the people who do this are simply living in unreasonable fear of gun confiscation, but some are people who are outright evading the law as they can't own firearms. That's what the change that the President is doing is designed to address.
So where does that leave everything?
Well, that's a bit hard to say.
The number of really short AR556's out there really isn't large as most serious shooters have no need for them, and for that matter, most people who are carrying a gun for self defense don't need one either. Those who do have them are going to have to register them under the NFA, which some will refuse to do, and some people will get in trouble for that. Some of them are going to insist that this is well within their rights, and then be disappointed to find themselves sitting in the pokey when a Court disagrees.
Ruger and other companies that now make the short barreled rifles will just quit making them.[3] Some people will rush out now and buy one in anticipation of that, to be disappointed to learn that now they have something that's going to have to be registered under the NFA. They're going to be impossible to get rid of as they have little use and nobody is going to want to bother with the NFA hassle for one of those. If you were going to, you'd probably just buy a submachinegun instead.
Some people will file lawsuits that will have the unintentional effect of boosting the AR15 Effect, which in turn will cause people who have little interest in the gun control topic overall to turn against gun owners, as the AR556 and its like serves as a good argument for those who want to order about "need". I.e., they're hard to defend and will make Second Amendment backers look unreasonable.
Ghost guns will also dry up, for the same reasons that AR556's and the like will, and some people will also get in trouble, for the same reasons.
And will the country be any safer?
That's extremely difficult to say. According to the administration, ghost guns are used in a fair number of crimes, but I'm pretty skeptical of that. It'd almost simply be easier for a criminal need a handgun or whatever to get one at a gun show or through a private purchase, which raises the "gun show loophole", but it's pretty unclear how often an acquisition that way is actually used. There's plenty of sources for illegal everything in the US, and chances are that overall the ghost gun regulation isn't going to do much of anything.
The AR556 rule might, although my guess it would be marginal.
So all this sets the stage, really, for later arguments. One thing it points out, however, is that if firearms manufacturers and for that matter fans had followed Bill Ruger's advise and eschewed weapons that looked like they belonged in combat, their argument would be easier now, even if that's an argument on semantics.
Footnotes:
1. I've written on AR15s here quite a bit, but this is the first time I've used this term. I may go back and add it to the earlier post.
What I mean by the AR15 effect is the glamorization of the AR15 in particular such that its reached a nearly hagiographic level. The AR15 is, quite frankly, not a very good rifle and wasn't a "space age" or modern one at the time the Air Force first started purchasing them for Southeast Asian USAF perimeter guards. It wasn't well liked by a lot of the more knowledgeable troops who first used it and it was disdained by serious riflemen later.
Colt Firearms, however, which was having monetary problems as far back as the 1970s lashed onto it as it made them under license. It took a long time for the rifle to reach the absurd level of popularity it has now, but now, in spite of it remaining a not very good rifle, it's gone on to push out better competitors in nearly every role its used in, an example of superb marketing accompanied by the development of an atmosphere since the 1980s that everyone needs to be prepared to engage in combat.
2. The stocked pistol is basically a military arm in some countries, or rather was as they really are a thing of the past at the present time. They've never been a big deal in the US but some countries did favor them as substitute carbines for some roles. The Germans did this during World War One with their artillery mode P08, which was carried by artillerymen and later by Storm Troopers. Mauser had done this commercially with their C96 which saw use all over the globe, incorporating a stock into a holster design for their exceedingly large pistol. The Chinese used a fair number of C96s and apparently the stock, as when they later bought Canadian built Browning Hi Power pistols, they bought them capable of taking a stock and bought some quantities of stocks as well.
3. The Herrera Effect is the name we're giving the enforcement of the law or perceived legal rights without thinking it out, which is what the Wyoming Game and Fish did with one Herrera, a Crow Reservation game warden whom was arrested for poaching an elk in northern Wyoming. That lead to the Wyoming v. Herrera case which is still working its way through the courts but which has thrown into confusion the role of the state and the rights of Native Americans in regard to wild game on public lands. It should have been evident right from the start that the warden should have turned a blind eye to the crime, which smart policemen will often do when it serves a larger purpose.
