I-594: Curios and Relics

November 16th, 2014


The ATF has long recognized that certain firearms fall into a category known as "curios and relics." As defined, this includes weapons that "are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons." Most are firearms over 50 years old, or for which the value is historical rather than functional.

Collectors of curios and relics (C&R) can acquire a Type 3 FFL, which allows them to bypass some of the transfer requirements of the Gun Control Act and Brady Act. To the best of my knowledge (and please prove me wrong), Borchardt pistols and Clement carbines are hardly the preferred weapons of gang violence and mass shootings.

But folks in Washington state decided to do things their own way. Whether through haste or design, I-594 now makes it pointless to hold a C&R license there.

The background check requirement applies to all sales or transfers including, but not limited to, sales and transfers through a licensed dealer, at gun shows, online, and between unlicensed persons.

Type 3's aren't dealers, so they can't conduct background checks. As such, they'll need to have all transfers done through a Type 1 or 2 dealer. That pretty much invalidates the very point of a C&R license.

What about the federal rules exempting C&R weapons? There's no equivalent in I-594. The only exception for the background-check requirement is for guns defined as antiques, which are:

(…) a firearm or replica of a firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898, including any matchlock, flintlock, percussion cap, or similar type of ignition system and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

That's, well…that's pretty much everything. There might be merit to a lawsuit challenging this conflict between federal and state law.

(Sorry, Crufflers: I hadn't considered this wrinkle before. I went back and checked last year's federal background-check bill. Its definitions would have presented the exact same problem.)

Hollis v. Holder

November 8th, 2014


A guy named Jay Aubrey Isaac Hollis has started a crowdfunding campaign. His goal is to bring litigation against Attorney General Holder on the grounds that the National Firearms Act and 1986 Hughes Amendment are unconstitutional.

In short, he submitted a Form 1 to the BATFE for approval to build a machine gun for personal use, even though it's illegal for him to do so. Somewhere along the line, somebody got their wires crossed, and it was approved. The BATFE recognized the error and revoked their approval the same day.

Mr. Hollis seems to think this is his big Mr. Smith Goes to Washington moment, and he's presenting a batch of Hail Mary passes to the Northern District court in Texas. Seriously, this is what he asks for in the opening pages:

  • overturning Wickard v. Filburn
  • declaring "unjust taking" under the 5th Amendment because an erroneous approval was reversed
  • applying strict scrutiny to all matters involving the 2nd Amendment, despite the fact that most Circuit courts have rejected the idea
  • revisiting the legislative process behind the passage of the Hughes Amendment

This guy is going to crash and burn in oral arguments, and we'll all suffer for it. Whatever you do, don't encourage him.

Continued »

I-594: A Recipe for Disaster

November 6th, 2014


It only cost $13 million, but Washington State voters have passed a bill [pdf] mandating "universal" background checks for all transfers of firearms. This is bad law. It will punish those whose only failing was not knowing its stipulations in detail, and it will do nothing to deter crime.

Under the law, a transfer is pretty much any situation in which possession of a gun changes. It doesn't just cover the sale of firearms–a transfer occurs whenever someone besides the registered owner is in possession of the gun. So, "hold my rifle while I tie my shoes" is a transfer. If a background check hasn't been done, with a licensed dealer as the intermediary, both parties commit a gross misdemeanor.

I'm afraid it's going to take a few innocent people getting thrown in jail or losing their right to own guns in Washington before the defects of this law come to light.

Continued »

On Referendums

November 4th, 2014


The Republicans are looking to pick up six or more seats in the Senate tonight. Mitch McConnell looks to be winning in Kentucky, and he'll probably replace Harry Reid as majority leader.

Tomorrow morning, the Republicans are going to be basking in optimism and satisfaction. That would be a tremendous mistake. They need to have viable plans in place right now, or they'll be back in the wilderness in two years.

Pundits are calling this election a referendum on the President and his policies. That's not the case. If anything, that would have been the 2010 election. The "take back our country" rhetoric and tricorner hats won Republicans a few seats, but the Tea Party forked the message and turned their narrow majority into a tool for little more than squabbling obstructionism. They seemed to think the public didn't notice.

Next came claims they'd take the White House in 2012. That didn't happen. Presidential candidates bickered among themselves over who was more conservative and did little else. When the dust settled, they were left with Mitt Romney. Tea Party freshmen in the House lost seats. In New York and New Hampshire, they lost their seats back to the Democrats they'd unseated in 2010.

They were left with just enough votes to force one government shutdown and threaten another. They've little else to show for their work.

This year, they seem more focused, but their victory will be transitory at best.

Continued »

Henderson v. United States

October 21st, 2014


The Supreme Court granted cert to this one last night. At issue is the disposition of a person's firearms once he's convicted of a felony.

The question presented is whether such a conviction prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests or (2) sell the firearms for the benefit of the defendant. The Second, Fifth, and Seventh Circuits and the Montana Supreme Court all allow lower courts to order such transfers or sales; the Third, Sixth, Eighth and Eleventh Circuits, by contrast, bar them.

Henderson's argument is here [pdf].

The government's response is here [also pdf].

I have little doubt this will be dubbed a "felons with guns" case or somesuch, but that would be inaccurate. Henderson does not assert that he is entitled to keep his firearms:  he is claiming that he has the right to compensation upon surrendering them.


October 20th, 2014


The paint on my black Stingray started chipping, so I took a Scotch-Brite pad to it.

Polished Stingray

Continued »

Settling In

October 13th, 2014


Clio's making herself at home. Maia doesn't always seem to approve of the new arrangements, though.

Clio on the couch


October 8th, 2014


I've had Maia for just over two years, so it's time for a new dog.

(A companion, not a replacement. It's important to make that distinction clear when you bring your existing dog to the shelter.)

So, this is Clio.

The coloring suggests English Setter, but the nose and ears are something closer to a Labrador. We're off to the vet tomorrow to get a better idea on age and lineage.

Eric Holder Resigning

September 26th, 2014


It may seem like odd timing, but it makes a perverse sort of sense. Come Monday, the Department of Justice will be required to release documents they previously withheld from Congress during the Fast & Furious investigation. Holder may be trying to distance himself from whatever fallout might ensue, but he remains in contempt of Congress for that bit of obstruction.

While it looks like he'll escape any consequences from that (and it has for some time), one can only hope this will haunt his professional life. Two American law-enforcement officers and over 150 Mexicans died as a result of a botched operation that took place on his watch.

As it stands, we've got a midterm election coming up, and there's a possibility of the Senate changing hands in January. If that's the case (and I'm not sold on it), the President will have a difficult time appointing a favorable successor. Expect a nominee before that.

I imagine Solicitor General Verrilli's name will be in the running. He's the safe choice. Deval Patrick's name was briefly floated, but his political baggage is more disastrous than Holder's.

Kamala Harris is also a possibility, which concerns me. She instituted California's ballistic fingerprinting system, supported Proposition H (a total ban on handguns in San Francisco), and signed on to an amicus curiae brief in the Heller case arguing against the individual right to keep and bear arms.

We're not going to get a good appointee, but Verrilli seems the least dangerous possibility.

DC Has a Carry Law, and It's Terrible

September 21st, 2014


In response to their recent court loss in Palmer v. DC, the District of Columbia has drafted a law [pdf] allowing civilians to carry firearms. The city council is doing their best to flaunt the court order without veering into direct contempt, much as they did following the Heller decision.

Essentially, one might be able to get a permit to carry in the District, but the bill is structured in such a way as to make it virtually useless. Here are the major provisions:

Applicants must demonstrate "a good reason to fear injury" and "a special need for self-protection distinguishable from the general community." Applicants must provide documented evidence of their plight. Said evidence may not be enough to sway the issuing authorities, who can deny the existence of a special need on a whim.

Applicants have to complete a course certified by the Chief of Police that includes at least 16 hours of training. The course must cover "situational awareness, conflict management, and moral and ethical decisions on the use of deadly force." How much will something like that cost, and how many instructors are there in the District to conduct it?

The Chief of Police may limit "the geographic area, circumstances, or times of the day, week, month, or year in which the license is effective."

Licensees may not carry in the following places:

  • Any building owned or under the control of the District
  • Any public transportation vehicle, including the Metrorail transit system
  • Any public gathering or special event conducted on property open to the public that requires issuance of a permit from the District or federal government
  • Within 1,000 feet, or other lesser distance designated by the Chief or his or her designee, when a dignitary or high ranking official of the United States or a state, local, or foreign government is under the protection of the Metropolitan Police Department, or other law enforcement agency
  • Any prohibited circumstance that the Chief determines by rule

The first four provisions cover pretty much every part of the District. Just for good measure, that last provision grants the Chief the authority to ban carry in any other place by fiat.

This is clearly not what Judge Scullin intended, and it's indicative of a larger trend. We win in the courts, and the defendants comply as little as possible, forcing us to sue again. They hope to wear us down by attrition.

Sensenbrenner Wants to Shut Down the ATF

September 18th, 2014


So, we've got a proposal on the table [pdf] to break up the ATF and fold its responsibilities into other law-enforcement agencies. The idea is to give the FBI authority to enforce firearms regulations while giving the alcohol/tobacco stuff over to the DEA.

I'd love to see it happen. Homer Cummings' little post-Prohibition revenue collection agency has grown into the arbiter of our firearms laws, and it would be a gross understatement to say they've done a horrendous job of it.

This is the agency that funneled guns across the border to Mexico in the Fast & Furious operation, who distributed swag to their agents emblazoned with "ATF: Always Think Forfeiture," and who were responsible for the debacles at Ruby Ridge and Waco.

Then there's the problem of their "whites only" Good Ol' Boys Roundup, which lasted more than a decade before being shut down.

Beyond the abuses lies the issue of gross incompetence.  They're charged with maintaining a registry of ~130,000 machine guns straight, but they've admitted an error rate of at least 50% in the NFRTR.

So, yes, I'd rather see the FBI running things. They're an older, larger organization run by professionals. They're the very antithesis of the ATF's go-getter cowboy culture–one that has resulted in serious catastrophes.

The funny thing? The idea of folding the ATF into the FBI has come up several times over the years. John Conyers proposed a bill after Ruby Ridge and Waco that even got support from Al Gore. The reaction from many ATF agents was favorable. They'd get better support and a much better working environment. It also wouldn't hurt to have the same organization handling compliance and enforcement of firearms laws.

There will always be regulation on firearms. If it's to be done, I'd rather have the FBI doing it.

Unfortunately, this is unlikely to pass under the current administration. One of the President's few successful actions after Sandy Hook was appointing a permanent director for the ATF, and he's not going to be keen on dismantling the organization.

If things change in 2016, this would be worth bringing up.

On Prohibition

September 16th, 2014


I'm a big fan of Kennesaw's Swift-Cantrell park, and I was dismayed to see this sign posted yesterday.

I understand the ban on tobacco. Secondhand smoke is a very real hazard, and nobody likes to see cigarette butts or puddles of treacly tobacco on the ground. E-cigarettes are a different matter. They don't generate litter, and exposure to bystanders is pretty much nil outdoors.

Furthermore, e-cigarettes aren't tobacco. Ordinance § 66-2(c)(3) makes it unlawful to "sell, smoke, or consume tobacco products." The Breathe Easy policy is overreaching.

Doug Taylor is the Parks & Recreation Director for the city. He can be contacted here. Please be civil and polite in all correspondence.

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