On Tuesday, December 18 2018 the BATFE introduced a new regulation banning "bump stocks".
Since then, at least one legal challenge has been started.
Is a bump-stock ban a bad thing?
Superficially, it may not appear to be particularly bad. These are devices that are of limited interest, and have probably been used in a domestic terrorist relayed incident (Las Vegas attack), although it is not really clear that this is actually the case. Several weapons were equipped with bump-stocks, but no evidence has been presented to show that these were actually used (there is a lot about that incident that is still unclear, and limits on any publicly available data are unusually tight).
What does it actually do?
The media present these as devices to turn an AR-15 into a machine gun. Lets look at that claim. We can start by looking at the principle of operation.
A semi-automatic rifle (or hand-gun for that matter) work on the principle of firing one bullet for every pull of the trigger. The faster you pull the trigger, the faster it fires. There is a technique that has been around as long as semi-automatic firearms have been around that can be used to speed up the rate of fire. This does not necessarily need any additional device, it is possible (with practice) to achieve high rates of fire. It works by holding the trigger finger rigidly, pressing against the trigger, then use the other hand to gently pull the gun forward. This will apply pressure to the trigger and the gun will fire. When it fires, recoil will move the gun backwards and the finger pressure on the trigger will be removed, and the action reset (just as normal), but continued pressure pushing the gun forward will cause the trigger to again press against the rigidly held finger. The cycle continues until you remove your finger, or remove the forwards pressure on the gun. This can be made to work with any gun, not only an AR-15. This technique is referred to as bump-firing.
Getting the technique right can be difficult, and some firearms make it easier than others. There are a variety of different devices that people have used to help make this easier. The "best" so far is the device specifically designed to make this technique easier to master. The bump-stock.
The bump-stock replaces the standard stock on an AR-15. Unlike the standard stock, it is nor firmly fixed to the buffer tube (which contains the spring and buffer which absorb the recoil and cycle the action each time the gun is fired. It has a extended cover that covers the trigger. In operation, you rest your finger against the trigger cover and slide the gun forward in the stock. This exposes the trigger, which then presses against your finger, and as you increase the forward pressure on the gun, it fires. Recoil pushes the gun back into the stock and the trigger away from your finger. All the bump-stock is doing is providing an easy method to hold your finger in a fixed position relative to the trigger, and an easy method of holding the gun in the right way for it to slide back and forth. Operation is exactly the same as with totally manual bump-firing, is just made easier.
So why is its ban questionable?
First, we have to look at what the BATFE has done. It has made the claim that a bump-stock converts an AR-15 into a machine gun.
So let's look at that claim. Several times, manufacturers asked the BATFE if bump-stocks were legal. Each time, they were told yes, because the firearm equipped with one still qualified as a semi-automatic rifle. Federal law is quite clear on the definition of a machine gun, it is any firearm that fires more than one bullet for each operation of the trigger. The bump-stock simply helps to operate the trigger much faster, but still only fires one bullet each time the trigger is operated.
Following political pressure, they have revised their opinion, and now say that it converts a semi-automatic firearm into a machine gun. By the law by which the BATFE is authorized to control the manufacture and possession of machine guns, a bump-stock equipped rifle is not a machine gun. They don't get to define what is and what isn't, it is clearly written in federal law (U.S. Code Title 26 Subtitle E Chapter 53 Subchapter B Part I § 5845), which defines a machine gun thus:
The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
With bump firing (with or without a bump-stock) the trigger is operated once per shot. By definition, it is not a machine gun, nor does it match the definition of any other firearm, and so is not subject to regulation by the BATFE.
Why is this dangerous?
There are a few reasons why this rule by the BATFE is dangerous:
- It is exceeding the limits of the law as written by congress. Agencies are there to implement the law as written. if they begin to do things outside the law, effectively creating their own law, it is subverting the constitution and the rule of law (not to mention the supremacy of congress in the area of law making).
- It sets the scene for arbitrary banning of all semi-automatic firearms. Since the combination of a rifle and bump-stock is not, by definition, a machine gun, what is being banned is rapid firing of a gun. Since the same effect can be reproduced with nothing more than a finger, does this make fingers machine guns and subject to regulation/banning? Since its difficult to regulate fingers, the only other option is to ban the guns themselves, since they can be fired rapidly, and apparently, the BATFE consider rapid fire = machine gun.
Silencers (or suppressors if you prefer) are very common items cheaply available in many countries, and actually required in some for shooting on ranges within urban boundaries.
In the US they are treated quite differently, requiring an extensive background check from the BATFE and very strict regulation. This is mostly because of their portrayal by Hollywood as making guns virtually silent, and only being used by criminals for nefarious activities. As an example, this from the Giffords Law Center website:
Silencers are inherently dangerous devices that criminals could use to suppress the sound of gunfire and mask muzzle flash. These deadly accessories have been effectively regulated since the 1930s, and would make it difficult for people who are nearby to identify the sound of gunshots and locate an active shooter. Silencers put law enforcement and the public at grave risk.
Notice that there is zero discussion of the positive aspects, only that criminals could use them. Well, have you ever heard a car without a muffler? or seen the flames that shoot out of the exhaust ports with no containment? We could use exactly the same argument, that car mufflers are inherently dangerous devices that criminals could use to mask the sound of their escape after committing criminal activity.
The same website goes on to state:
Dual ear protection—muffs and plugs—is the gold standard for any professional shooter, including police and members of the Armed Forces.
This is true. But it is entirely missing the point. Most people use silencers not so much for themselves as for those around them. It would seem that rather than silencing the guns for the neighbors of a gun range's benefit, they think that all of those people should invest in, and wear, hearing protection. Apply the same logic to cars, rather than cars having mufflers, people bothered by their noise should wear hearing protection. I don't think so.
If the worry is about criminals using them, so we don't want anyone to use them, well, how hard would it be for a criminal to obtain one? There are various things our criminal can do. there is the age-old criminal acquisition technique known as theft for a starter. That is currently not so easy. As it stands, these things are rare, and more than that expensive, and can take up to a year to get through the BATFE processes, so their owners tend to take good care of them and keep them locked up when not in use.
So what is a criminal to do? Well, they can always make their own. Lets take a look at the simplest form of commercial silencer:
As you can see, its basically a tube, with a tube that slides inside which has been cut into sections. Each section is inserted, followed by a washer, next section, next washer etc. Much more expensive silencers with use something a bit more sophisticated than washers as the internals and may actually get a little bit more sound suppression, but this sort of silencer works pretty well, and is not difficult for someone with a bit of practical ability to make. In fact, you can get a license from the BATFE to make one (just one) yourself. Its still has a $200 tax and you still have to do the extensive background check and wait around a year, but a lot of people like to build their own stuff, and this is typical of the first silencer that someone might build.
Of course, get caught with it without the paperwork and tax stamp and you are in trouble. But, thats pretty much the definition of being a criminal anyway, isn't it?
So maybe you don't have much practical ability, there are other options. You can go to eBay and buy a "solvent trap":
This little device has two different threads. The internal one fits the barrel of your gun. The outer thread fits a car oil filter. The oil filter doesn't have a hole in the end, but that is easily solved by firing one shot, which makes a hole in the end.
An oil filter is obviously much more bulky than a properly designed silencer, but it is quite effective. It may not last long, since the internals are mostly plastic and paper/cardboard, but then it is cheap and easily replaced.
If you want to do this legally, you can actually register one of these (yes, just the thing in the photo above) as a silencer. It will cost you $200 and a fairly long wait for the BATFE to process your background check.
There used to be a link to a video here of someone with a legally registered one of these devices showing how it worked, but Google decided that his video violated their community standards and removed it.
The point is though, if a criminal wants a silencer, one of these things costs about $2 on eBay, and an oil filter maybe $5.
As you can imagine, for someone slightly mechanically inclined, making one of these would be trivial.
Legal Precedent and the law
People are sometimes surprised when they are told that reading the Oregon Revised Statutes (the law) is not always sufficient, and question why that may be.
The answer is that it is a complex, and changing topic. To try to illustrate this, we will consider her just one small part of the law; when you can defend yourself against an aggressor.
Lets begin by looking at what the relevant section of Oregon law actually says:
ORS 161.219
Limitations on use of deadly physical force in defense of a person
Notwithstanding the provisions of ORS 161.209 (Use of physical force
in defense of a person), a person is not justified in using deadly
physical force upon another person unless the person
reasonably believes that the other person is:
(1) Committing or attempting to commit a felony involving the use
or threatened imminent use of physical force against a person; or
(2) Committing or attempting to commit a burglary in a dwelling; or
(3) Using or about to use unlawful deadly physical force against a person.
[1971 c.743 §23]
Seems pretty straightforward. If someone is trying to or threatening to use either physical force, or deadly force against you, you can use deadly force to defend yourself. The only real limitation is in 1) that they have to be committing or threatening to commit a felony involving that use of force. In general, any crime involving the use of (significant) force or deadly force against you is going to be a felony.
Not quite a "stand your ground" law in the style of that of Florida, but good enough (from the point of view of someone being attacked).
Note that there is absolutely nothing about having to retreat.
State vs Charles (1982)
In the early 1980's, there was one Anthony Arnold CHARLES who was attacked by four individuals in Eugene, OR. He defended himself and one of his attackers was killed. The public prosecutor decided to try him for murder. Charles requested that the jury be informed of his right to self defense. The judge refused, and Charles was found guilty. He appealed his conviction on the basis that the jury were not informed of his right to self defense. The appeal was denied.
Charles then appealed to the Oregon Supreme Court at the beginning of 1982. The court denied his appeal. Their reasoning can only be called strange (State v. Charles 647 P.2d 897 (1982)). Basically they didn't look at the 1971 law (ORS 166.219 above), but dragged up various statements dating from well before that date as well as discussing laws in other states, and proposed laws which were never passed. Off to jail with Mr. Charles.
In addition, this created case law, in pretty much direct contradiction of the actual law, and because case law is (almost) always followed, on the basis of giving equal treatment under the law, Oregon became a "retreat" state, where you had to have absolutely no way to get away before you could defend yourself. This, without any change in the actual law.
State vs Sandoval 2007
One Leonard Contreras SANDOVAL had an encounter with his wife's ex domestic partner. The encounter was described thus:
The two men had a history of combative and sometimes physically violent interactions.
The shooting occurred on a road that both men frequently traveled.
When the police arrived on the scene, defendant described the following sequence of
events: Whitcraft had driven by on the road as defendant was about to turn onto it;
after defendant turned onto the road behind Whitcraft, Whitcraft stopped his truck
and backed it into defendant's truck; Whitcraft then turned and aimed a pistol at defendant;
defendant grabbed a rifle that he was carrying in his own vehicle (both men kept guns
in their vehicles), opened the door of his truck and fired a single shot at Whitcraft.
Investigators determined that the shot had entered Whitcraft's skull behind his left
ear, killing him instantly. Police later found Whitcraft's loaded and cocked pistol
under Whitcraft's body.
The prosecutor decided to treat it as murder rather than self defense, based upon the CHARLES precedent, because SANDOVAL did not attempt to run away.
To make matters worse, the prosecutor insisted that the following instruction be given to the jury, and the judge agreed:
"The danger justifying the use of deadly force must be absolute, imminent, and unavoidable, and a necessity of taking human life must be actual, present, urgent and absolutely or apparently absolutely necessary. There must be no reasonable opportunity to escape to avoid the affray and there must be no other means of avoiding or declining the combat."
Sandoval was convicted of murder.
He appealed on the basis that the jury instruction was incorrect. His appeal was rejected. He then appealed to the Oregon Supreme Court, which, 25 years later, had a different set of judges. Their analysis (State v. Sandoval (2007)) is very interesting. Not only did they examine the actual law, as written, but of necessity examined the prior case law (Charles). They were not complimentary about the decision. Sandoval's appeal was upheld, and Oregon reverted back to its status of a (pretty much) stand your ground state. Again, with no change in the law.
The point of going over this is to illustrate that simply reading the law is not enough. Activist judges can (and do) stand the law as written on its head, and you have no way of knowing the current state unless you are skilled in legal research and can evaluate the written law through the filter(s) of one or more applicable legal precedents. Lawyers really do earn their money. People that just read out the written law to you without pointing out the hidden dangers of taking it at face value, do not.
