Re:The ATF is giving out machine guns, whether you want one ...
by lazide on Tuesday February 23, 2021 @03:32PM
(#26242502)
At the root of this is who gets to interpret a (often vague, often overreaching) law. One could argue the courts and they certainly are the ones with the role of doing any final interpretation.
However, who decides to take someone to court, or apply the weight of a federal/state prosecution to someone in an attempt to do so? The on the ground executive agencies.
These agencies have wide latitude in interpreting what is or is not illegal, which could include asserting 'that is obviously not a machine gun' [https://en.wikipedia.org/wiki/Gatling_gun] to 'this is clearly a machine gun' [this case], even to the point of changing their mind and now prosecuting previously un-prosecuted 'now' violations.
It takes a case going to court to get the courts to weigh in on it in general, and controversial cases often will not. A recent example of such a 'this is fine', 'actually this is not and we're going to retroactively go after you for this' is the Polymer80 raid [https://www.rgj.com/story/news/2020/12/15/dayton-based-gun-m...], where a manufacturer following prior ATF guidelines regarding what is or is not a gun to make kits for self-manufacture is now accused by the ATF of selling and shipping guns - when their own prior guidance say they are not guns.
There are plenty of laws right now in all jurisdictions that are enforced with no real belief a court would ever uphold an arrest if it got that far. One such example is Loitering laws which have been ruled unconstitutional for many reasons, including 1st amendment, and even when rewritten to avoid those problems [https://en.wikipedia.org/wiki/City_of_Chicago_v._Morales], get ruled unconstitutional for other reasons like being so vague no one has any reasonable idea if it would apply to them.
They provide a fig leaf of lawfulness and authority on what is fundamentally a way to assert control over a group, individual, or place, and deter unwanted (by the agency) activity through harassment.
The associated arrest records (if they exist, in many cases the offender is released before booking) can be a big problem during background checks, or even trigger statutory penalties that can stop someone from exercising civil rights like owning a firearm for self defense.
Even without arrest records or formal charges, being arrested and held up to just short of 2 days (in California), and 3 days in other locations, has a major effect on people. A 'chilling effect' to use a common term.
If it gets to court, and the court rules against the agency, they can pick another lever to use. The taxpayers usually pick up the tab. It is very rare it gets that far however.
However, who decides to take someone to court, or apply the weight of a federal/state prosecution to someone in an attempt to do so? The on the ground executive agencies.
These agencies have wide latitude in interpreting what is or is not illegal, which could include asserting 'that is obviously not a machine gun' [https://en.wikipedia.org/wiki/Gatling_gun] to 'this is clearly a machine gun' [this case], even to the point of changing their mind and now prosecuting previously un-prosecuted 'now' violations.
It takes a case going to court to get the courts to weigh in on it in general, and controversial cases often will not. A recent example of such a 'this is fine', 'actually this is not and we're going to retroactively go after you for this' is the Polymer80 raid [https://www.rgj.com/story/news/2020/12/15/dayton-based-gun-m...], where a manufacturer following prior ATF guidelines regarding what is or is not a gun to make kits for self-manufacture is now accused by the ATF of selling and shipping guns - when their own prior guidance say they are not guns.
There are plenty of laws right now in all jurisdictions that are enforced with no real belief a court would ever uphold an arrest if it got that far. One such example is Loitering laws which have been ruled unconstitutional for many reasons, including 1st amendment, and even when rewritten to avoid those problems [https://en.wikipedia.org/wiki/City_of_Chicago_v._Morales], get ruled unconstitutional for other reasons like being so vague no one has any reasonable idea if it would apply to them.
They provide a fig leaf of lawfulness and authority on what is fundamentally a way to assert control over a group, individual, or place, and deter unwanted (by the agency) activity through harassment.
The associated arrest records (if they exist, in many cases the offender is released before booking) can be a big problem during background checks, or even trigger statutory penalties that can stop someone from exercising civil rights like owning a firearm for self defense.
Even without arrest records or formal charges, being arrested and held up to just short of 2 days (in California), and 3 days in other locations, has a major effect on people. A 'chilling effect' to use a common term.
If it gets to court, and the court rules against the agency, they can pick another lever to use. The taxpayers usually pick up the tab. It is very rare it gets that far however.