The Sounds of Silencers

In case you haven’t noticed, Washington D.C. is a sieve on a sinking ship whose life rafts have holes in them. And I’m not talking about Donald Trump. No, it’s the ATF, also known as the Bureau of Alcohol, Tobacco, Firearms, and Explsives, aka BATFE. But they’re going with ATF, and so are we.

On January 20, 2017–the day the Donald was inaugurated–Ronald Turk, Associate Deputy Director (Chief Operating Officer), issued a white paper, titled “Options to Reduce or Modify Firearms Regulations.” Right there on the coversheet, immediately below the words White Paper is the following warning: (Not for public distribution).

For those from another planet, those words mean “Not for public distribution.”

Anyway, here we are two weeks and three days later, and you’re reading about the white paper on my blog. Now you’re going to get to read a few actual paragraphs from the paper. But first I should quote the following, again, from the paper:

Note: The opinions expressed within this white paper are not those of the ATF; they are merely the ideas and opinions of this writer. They are provided for internal use within ATF and DOJ and not intended to be public. They are also general thoughts that cannot be taken as exacting language regarding policy or quotable specifics. Additional specific details can be provided to further these general discussions.

The men and women of ATF are overwhelmingly a fantastic group of hard working civil servants who look to reduce violent crime and ensure public safety. The focus on combating gun violence is key. Fairly regulating the firearms and explosives industries is also important. As the firearms conversations take place over the next few months and years, this paper is offered to provide informal insight on potential productive ways to limit regulation and continue to protect our Second Amendment freedoms, while focusing on ATF’s mission to protect our nation. (Italics and bolding in the original)

As Mr. Turk makes even clearer in the paper’s Executive Summary:

ATF is the only Federal law enforcement agency with a primary mission that directly involves an Amendment to the United States Constitution. Thus, our actions and policies are appropriately subjected to intense review and scrutiny. This paper serves to provide the new Administration and the Bureau multiple options to consider and discuss regarding firearms regulations specific to ATF. These general thoughts provide potential ways to reduce or modify regulations, or suggest changes that promote commerce and defend the Second Amendment without significant negative impact on ATF’s mission to fight violent firearms crime and regulate the firearms industry. This white paper is intended to provide ideas and provoke conversation; it is not guidance or policy of any kind.

ATF’s enforcement and regulatory efforts are focused on reducing violence and increasing public safety. Positive steps to further reduce gun violence through enforcement or regulation are extremely important but are not the focus of this paper. (Emphasis supplied)

Mr. Turk proceeds to list and discuss 16 items he feels  are worth looking at with the intent of possibly making some changes to the way the ATF fulfills its mission. For purposes of this post, item or paragraph #8 is the most interesting. I’ll quote it in full here:

Silencers: Current Federal law requires ATF to regulate silencers under the NFA. This requires a Federal tax payment of $200 for transfers, ATF approval, and entry of the silencer into a national NFA database. In the past several years, opinions about silencers have changed across the United States. Their use to reduce noise at shooting ranges and applications within the sporting and hunting industry are now well recognized. At present, 42 states generally allow silencers to be used for sporting purposes. The wide acceptance of silencers and corresponding changes in state laws have created substantial demand across the country. This surge in demand has caused ATF to have a significant backlog on silencer applications. ATF’s processing time is now approximately 8 months. ATF has devoted substantial resources in attempts to reduce processing times, spending over $1 million annually in overtime and temporary duty expenses, and dedicating over 33 additional full-time and contract positions since 2011 to support NFA processing. Despite these efforts, NFA processing times are widely viewed by applicants and the industry as far too long, resulting in numerous complaints to Congress. Since silencers account for the vast majority of NFA applications, the most direct way to reduce processing times is to reduce the number of silencer applications. In light of the expanding demand and acceptance of silencers, however, that volume is unlikely to diminish unless they are removed from the NFA. While DOJ and ATF have historically not supported removal of items from the NFA, the change in public acceptance of silencers arguably indicates that the reason for their inclusion in the NFA is archaic and historical reluctance to removing them from the NFA should be reevaluated.ATF’s experience with the criminal use of silencers also supports reassessing their inclusion in the NFA. On average in the past 10 years, ATF has only recommended 44 defendants a year for prosecution on silencer-related violations; of those, only approximately 6 of the defendants had prior felony convictions. Moreover, consistent with this low number of prosecution referrals, silencers are very rarely used in criminal shootings. Given the lack of criminality associated with silencers, it is reasonable to conclude that they should not be viewed as a threat to public safety necessitating NFA classification, and should be considered for reclassification under the GCA.

If such a change were to be considered, a revision in the definition of a silencer would be important. The current definition of a silencer extends to “any combination of [silencer] parts,” as well as “any part intended only for use in” a silencer. Compared to the definition of a firearm, which specifies the frame or receiver is the key regulated part, any individual silencer part is generally regulated just as if it were a completed silencer. Revising the definition could eliminate many of the current issues encountered by silencer manufacturers and their parts suppliers. Specifically, clarifying when a part or combination of parts meets a minimum threshold requiring serialization would be useful. (Emphasis and underlining added)

Have you ever shot a gun that had a silencer (aka suppressor). I have. Once. A 22 caliber handgun. Ffffft! Ffffft! Fffffft! The sound resembled a feral kitten defending itself. Ffffft! Ffffft! And just about as harmless. Surprisingly quiet, but then, why not? A 22 caliber handgun or rifle is pretty quite with or without a silencer.

A silencer on my 357 magnum? That’s another sound altogether. For the uninitiated, silencers don’t really silence anything. They simply suppress sound. Yes, James Bond uses a silencer to “eliminate” the sound of his kill. Hunters and marksmen, on the other hand, use silencers/suppressors to reduce the firearm’s retort so as to protect their ears. And the suppressor just barely does that job, reducing the sound to just below the number of decibels OSHA allows in the workplace. In other words, with the possible exception of the smallest caliber firearms, suppressors still allow for a big enough bang to damage a shooter’s ears over time.

And yet the knives–no guns for these folks–are already out, wielded by people who’ve seen one too many Bond flicks and whose motto is there’s no regulation too strong and too ineffectual for the gun industry.

Good news is, it’s sounding like the ATF might be thinking of listening to more rational people. Let’s hope so. Could save you $200 on your next suppressor purchase.

One Word: Neat – Silencer Shop’s Kiosks for NFA Trust Paperwork

I wrote about Silencer Shop’s kiosks a few months ago. Here’s a video that demonstrates how they work. The title of the video is a bit misleading. You don’t set up or buy an NFA firearms trust on the Kiosk, rather you initiate the government-required paperwork–your Form 4, for example– so you can use your trust to purchase an NFA item.

Want Your 2nd Amendment Rights Restored? There’s Hope.

get-out-of-jail-freeProfessor Eugene Volokh posted today about a decision handed down today by the 3rd Circuit Court of Appeals that answered the question on at least a few people’s minds: If I was convicted of a felony and if I’ve served my sentence, cleaned up my life, and stayed out of trouble, might I have my 2nd Amendment rights restored?

The short answer is no. The longer answer involves more than a few maybes. But if you’ve been a good boy or girl and if your felony conviction didn’t involve violence, your chances are better than zero.

The decision itself is quite long and Volokh’s discussion of it is rather complicated, so I won’t try to summarize either beyond what I’ve written above. But if you’re really interested, here’s a link to the case. If you’re just kind of interested, here’s a link to Volokh’s post. Enjoy.

41 F: Fingerprints and Photographs Quick as a Wink – Somebody’s Taking Care of Their Customers

WqrSS-660x657ell, somebody’s on the ball. The people at Silencershop.com just announced some new technology they developed that will make complying with ATF 41F much easier for the responsible persons of trusts and entities to submit their fingerprints and photographs.

Sometime before July 13th, when ’41F’ finally takes effect, Silencer Shop will ship out 300 fingerprint-scanning kiosks to select Silencer Shop ‘Powered By’ dealers across the country. Then, after July 13th, when a customer purchases a suppressor from the Silencer Shop website, they select their local dealer of choice, submit payment for both the suppressor(s) and NFA transfer tax(es) and if necessary, uploads their trust or LLC documents. In return, Silencer Shop will email each customer a unique QR code that they can take to those select Powered By dealers to scan and then follow the instructions to use the kiosk to capture an FBI-approved set of fingerprints. (Certain restrictions apply and will be outlined prior to launch.)

The customer’s prints are then securely transmitted to Silencer Shop’s headquarters and stored offline. All of your information is then submitted along with the BATFE Form 4 to initiate the transfer application process. The result is that customers and if needed, their ‘responsible persons’ (we’ll get to that part) will only have to be fingerprinted once no matter how many silencers they buy over the course of months and years to come. And since individuals no longer require a Chief Law Enforcement Officer (CLEO) sign-off, both individuals and entities will also be able to utilize the kiosk system.

The photograph requirement will be addressed by a custom Silencer Shop App for iOS and Android that will take passport-sized images that will also be transmitted to Silencer Shop HQ. Per the BATFE rules, every two years the photographs will be need to be retaken. Customers will simply use the Silencer Shop App to grab another selfie.

Sounds cool to me. Free enterprise at its best–in spite of the obstacles.

Required Reading, Then and Now

Jefferson LCBTwo things interest me about the two quotes below: First, that original material was written in 1764–in Italy–by Cesare Beccaria in his treatise On Crimes and Punishments. Yes, I know. It sounds like something right out of an NRA press release in response to yet another move by the [name your president] to implement by executive order more “common sense” restrictions on firearms. But no, Beccaria was a political philosopher of some renown, whose work many of the Founders thought important enough to use as source material for the founding documents of this nation. Jefferson, for one, copied the passage below into his Legal Commonplace Book, a sort of journal the author of the Declaration of Independence used to keep track of important ideas–I assume his and of others. Jefferson entered the Beccaria quote into his journal in the original Italian. The first quote below is the English translation of Italian, which appeared in in 1809 and which Jefferson owned.

That brings me to the second interesting thing: The two quotes are essentially the same quote from Beccaria, the first an 1809 translation, the second a 1963 translation. You can find the second all over the Internet. (I originally found it in a book I’m reading, That Every Man Be Armed by Stephen P. Holbrook, an excellent history of the Second Amendment, going all the way back to the Greeks and Romans.)

So you can easily notice the differences, I’ve color keyed the corresponding words in each translation. (And yes, I realize that the second translation has an ellipsis.) I prefer the second, newer, and I’d say more elegant translation. Whatever your preference, Becarria offers up some good food for thought, even today.

“A principal source of errors and injustice are false ideas of utility. For example: that legislator has false ideas of utility who considers particular more than general conveniencies, who had rather command the sentiments of mankind than excite them, who dares say to reason, ‘Be thou a slave;’ who would sacrifice a thousand real advantages to the fear of an imaginary or trifling inconvenience; who would deprive men of the use of fire for fear of their being burnt, and of water for fear of their being drowned; and who knows of no means of preventing evil but by destroying it.

The laws of this nature are those which forbid to wear arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent. Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? Does not the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator? and does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty? It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons.”

Though you can find the following translation of the quote by Paolucci in a number of places, I found it here.

False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes….Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.

For those who would prefer practicing their Italian, here’s the quote in Italian, as it appeared in Jefferson’s Legal Commonplace Book:

“Falsa idea di utilità è quella, che sacrifica mille vantaggi reali, per un inconveniente o immaginario, o di poca conseguenza, che toglierebbe agli uomini il fuoco perchè incendia, e l’acqua perchè annega; che non ripara ai mali, che col distruggere. Le leggi, che proibiscono di portar le armi, sono leggi di tal natura; esse non disarmano che i non inclinati, nè determinati ai delitti, mentre coloro che hanno il coraggio di poter violare le leggi più sacre della umanità è le più importanti del codice, come rispetteranno le minori, e le puramente arbitrarie? Queste peggiorano la condizione degli assaliti migliorando quella degli assalitori, non iscemano gli omicidi, ma gli accrescono, perchè è maggiore la confidenza nell’assalire i disarmati, che gli armati. Queste si chiaman leggi, non preventrici, ma paurose dei delitti, che nascono dalla tumultuosa impressione di alcuni fatti particolari, non dalla ragionata meditazione degl’inconvenienti, ed avvantaggi di un decreto universale.”

ATF 41 F — The Official Document

I don’t think I ever posted a link to the official (or at least, the official looking) ATF 41 F as it appeared in the Federal Register. Here it is.

To refresh your memory, ATF 41F affects the firearms trusts (aka gun trusts and NFA trusts). It goes into effect on July 13, 2016. Until then, firearms trusts are the most effective and least intrusive way for you to purchase NFA items, including suppressors or silencers–in my humble opinion. After July 13, 2016, I think firearms trusts remain the best way to purchase those items, for most–but not all–the same reasons. Again, in my humble opinion.

No, the CLEO’s signature on individual applications will no longer be required, and

Yes, so-called “responsible persons” will be required to provide fingerprints and photographs, BUT

-Firearms trusts set up a structure that protects against unwise and often uninformed use/misuse of NFA firearms while you’re alive, misuse that can result in severe penalties and fines, and

-Firearms trusts establish a framework for sharing NFA items while you’re alive, a framework not available to people who purchase NFA items in their capacity as individuals, and

-Firearms trusts provide a mechanism for distributing your prized firearms to your beneficiaries when you die, again without running afoul of the law.

No, for my money, a well-drafted firearms trust remains the best way to purchase NFA firearms, now and after July 13, 2016.

A Stunning (Gun) Win for 2nd Amendment Rights

The headline in the March 22, 2016, Washington Post article says it all: “Unanimous pro-Second-Amendment stun gun decision from the Supreme Court.” Unanimous as in every justice apparently agreed with the following sentiment expressed in the per curiam opinion by the nation’s highest court.

The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.

The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 554 U. S., at 624–625.

For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered. (emphasis added)

I bolded some key words in the opinion because they are so emphatic about the meaning of the Heller decision. Who knows what the future holds–now that Justice Scalia has died–but this opinion should be comforting to those concerned about their 2nd Amendment rights. (By the way, do read the linked-to WashPo article. Eugene Voloch is an important voice on the Constitution.)

Why Not Use My Revocable Living Trust as a Gun Trust?

Question Mark_YellowI just took a call from a fellow who asked a very good question: Why not use my revocable living trust as a gun trust? The short answer to that question is, “because.”

But if that’s too short for you, here’s a longer version I gave him–in bullet points:

  • Guns are not like virtually any other property. They are regulated. Those regulations come with stiff fines and possible imprisonment if you should accidentally violate them. Gun trusts take that into account. Regular trusts don’t.
  • To transfer your home or your bank account, it’s a relatively simple matter of signing a deed or changing the name on the account. You don’t have to worry about who the transferee is and what he’s been up to lately. To transfers any firearms, you always have to be worried about what the transferee has been up to recently or even way back when because if he’s been up to no good, he could be a “prohibited person,” and you could get into trouble for selling or giving your gun to him.
  • Transferring–giving or selling–an NFA item is even more problematic. With each and every transfer, there’s fingerprints, photos, forms, signatures, and the like AND a $200 tax AND a long waiting period before you can actually, physically transfer the darn thing. What if when you die or become incapacitated, your trustee doesn’t understand that? Big problems could ensue. (Yes, I know that the transfer tax doesn’t apply when the transfer is from the estate of a decedent to a lawful heir.)
  • A well-drafted gun trust takes care of the problems I just described because it comes full of instructions and warnings about the relevant law and issues–guidance, if you will–so your trustee knows what and what not to do.
  • A well-drafted gun trust also allows for sharing of NFA items without incurring the wrath of the gun gods. I’ve yet to see a regular revocable living trust that does that.
  • Finally, know this: when you buy an NFA item using a trust, you have to send a copy of the complete trust to the BATFE, which keeps it on file. Do you want to send them your revocable living trust that names all your children, speaks of how you want to disinherit your youngest and how you want the gold buried in your backyard to go to your brother Willard and that you want $1,000,000 of your estate to go to the American Red Cross? I wouldn’t either. A well-drafted gun trust won’t disclose that kind of information.

Anyway, that’s why you don’t want to use your regular revocable living trust as a gun trust.

Empty Chamber Indicator — Update

Ok, so in my first post on the Empty Chamber Indicator, I referred rather cryptically to the television production Behind the Scenesindicating I might report back later. Well, it’s later.

Yesterday I returned to my office to find a phone message from a man asking me to call Michael Alexander, the producer of Behind the Scenes, which, it turns out, produces short informational documentaries to fill a three-minute space on PBS between the ending of one program and the beginning of another. On commercial TV, that space is filled by commercials.

As I mentioned yesterday, the list of people who’d been featured on Behind the Scenes was pretty impressive, including Colin Powell and G.H.W. Bush and many similar personalities from the world of government, business, medicine, you name it.

The phone message said that Mr. Alexander wanted to talk to me about doing a short documentary on estate planning in general, but more particularly on gun trusts (also known as NFA trusts). I was impressed. First, how did they find me? My blog? My Facebook page? LinkedIn? Other sites I’m listed on? I was also skeptical.

And then Mr. Alexander returned my call. Apparently the company’s legit. And they were interested in talking to me about doing a short documentary on gun trusts. Oh, and as part of the bargain, I needed to fork over some dollars.

Now I don’t say this disparagingly. I don’t think I was being scammed. You see, not only did they distribute their short films through PBS–some 300+ stations, according to Alexander–they also would make sure even shorter versions of the PBS documentaries were shown 50 times on any five TV stations I chose in Utah and Wyoming (I’m not sure whether that was 50 total or 50 x 5 or 250 times). And, they would also “narrowcast” the programs to targeted audiences in the Internet. That’s a lot of publicity.

But it wasn’t free. I won’t disclose the terms here because, well, because. Suffice it to say, it wasn’t cheap, though for the right firm at the right time, doing the deal with Mr. Alexander could be a good decision.

Fame is fleeting. Imagined fame even more fleeting. Oh well.

Empty Chamber Indicator

For reasons I may disclose later, I was checking out the website of the TV program Behind the Scenes. I looked at some of the program’s past episodes and guests and quickly realized that Behind the Scenes keeps some good company. I was on site, however, to see what kind of journalism the program practiced. I was particularly interested in how it covered some hot button subjects. Guns, for example.

ECIWatch the brief episode at this link and tell me what you think. If you’re interested in purchasing an Empty Chamber Indicator, the product discussed at that link, go here.

 

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