Comments on: Unlikely http://www.snowflakesinhell.com/2008/03/05/unlikely/ Where There's Snow, There's Firepower Tue, 02 Dec 2008 02:45:22 +0000 http://wordpress.org/?v=2.6.3 By: Chris Byrne http://www.snowflakesinhell.com/2008/03/05/unlikely/#comment-19964 Chris Byrne Fri, 07 Mar 2008 02:12:31 +0000 http://www.snowflakesinhell.com/2008/03/05/unlikely/#comment-19964 Actually, it is not unlawful. The ATF has discretinary authority; and they have used that discretinary authority to promulgate what is technically speaking an executive administrative procedure. Administrative procedures are not technically laws; they are the instruments of policy, of the executive branch of government; so although they often have the effective force of law, they have a different legal status. IN this case, the ATFs authority is clear; they have chosen to deny all new registrations of machine guns; which is lawful under the FOPA '86. They could chose to allow it if they wanted to; which would also be lawful. You can still file the paperwork to register a newly manufactured machine gun as transferable; it will just automatically be denied. This is complicated somewhat however by several rulings over the past few years that make it clear that ATF administrative rulings do NOT have the force of law, unless backed by a court order. That's a very important distinction. For one thing, you can't have your property seized without a court order. For another, court orders can be appealed and overturned (executive rulings cannot). Actually, it is not unlawful. The ATF has discretinary authority; and they have used that discretinary authority to promulgate what is technically speaking an executive administrative procedure.

Administrative procedures are not technically laws; they are the instruments of policy, of the executive branch of government; so although they often have the effective force of law, they have a different legal status.

IN this case, the ATFs authority is clear; they have chosen to deny all new registrations of machine guns; which is lawful under the FOPA ‘86. They could chose to allow it if they wanted to; which would also be lawful. You can still file the paperwork to register a newly manufactured machine gun as transferable; it will just automatically be denied.

This is complicated somewhat however by several rulings over the past few years that make it clear that ATF administrative rulings do NOT have the force of law, unless backed by a court order.

That’s a very important distinction. For one thing, you can’t have your property seized without a court order. For another, court orders can be appealed and overturned (executive rulings cannot).

]]> By: Sebastian http://www.snowflakesinhell.com/2008/03/05/unlikely/#comment-19939 Sebastian Thu, 06 Mar 2008 14:43:25 +0000 http://www.snowflakesinhell.com/2008/03/05/unlikely/#comment-19939 They can, but there's a rule making process that has to be gone through to change CFR. That includes a public comment period, and various other things. We'll be seeing this process happen in April with the National Park gun ban when the process takes place for that. Federal agencies can't change their regulations on the sly. They can, but there’s a rule making process that has to be gone through to change CFR. That includes a public comment period, and various other things. We’ll be seeing this process happen in April with the National Park gun ban when the process takes place for that. Federal agencies can’t change their regulations on the sly.

]]> By: ParatrooperJJ http://www.snowflakesinhell.com/2008/03/05/unlikely/#comment-19938 ParatrooperJJ Thu, 06 Mar 2008 14:35:09 +0000 http://www.snowflakesinhell.com/2008/03/05/unlikely/#comment-19938 That's true, but any regulations made by the ATF can be unmade by the ATF. (I am not saying that it is happening, just that the ATF can always change the regulations.) That’s true, but any regulations made by the ATF can be unmade by the ATF. (I am not saying that it is happening, just that the ATF can always change the regulations.)

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