April 28, 2020
“A federal judge has found makers of assault rifles used by a gunman to indiscriminately shoot at concertgoers at the Route 91 Harvest Musical Festival in Las Vegas in 2017 must face a wrongful death claim by the family of one of the 58 people killed,” Courthouse News Service reports. “U.S. District Judge Andrew Gordon, a Barack Obama appointee, found in a 15-page order that Colt’s Manufacturing and other gun makers and dealers whose AR-15 rifles were used in the mass shooting could not dodge a lawsuit by one of the victim’s family.”
What happened to the Protection of Lawful Commerce in Arms Act, passed by the legislative branch of government, and signed by the executive?
Per the order, “The wrongful death and negligence per se claims are premised on the Parsons’ contention that the defendants manufactured and sold firearms that were designed to shoot automatically, rendering them illegal machine guns under federal and Nevada law.”
That’s clearly bunk, but bunk that conveniently advances the gun-grabber goal of banning semiautomatics. So how is it that one activist judge, with clear political leanings, can impose his will and override duly enacted law, and make a company liable for third-party abuses?
First off, we have our “leaders” to thank.
In the Beginning…
Let’s go back to how Judge Gordon got into a position where he could impose his treasonous agenda on his countrymen – and lest you think that’s too strong a word, note what the Founders considered “necessary to the security of a free State.” The judicial apparatchik knows exactly what he’s subverting, and he’s done it with calculated premeditation. Then again, we expect a snake to bite, so we need to go back to who besides Obama thought it would be a grand idea to put this one on the federal bench.
The system is geared to do that. By throwing softball questions that allow plenty of room for misrepresentation of actual positions, equivocation and weasel-wording, even a radical gun-grabber like Gordon can come across as moderate, reasonable, impartial, fair and respectful of precedent.
A report prepared by Congressional Research Service, a “think tank” established to inform our representatives on issues of import, notes that in judicial confirmation hearings, nominees have been able to rely on an “out” giving them a pass on answering specific questions:
“In recent decades a recurring Senate issue has been what kinds of questions are appropriate for Senators to pose to a Supreme Court nominee appearing at hearings before the Senate Judiciary Committee. Particularly at issue has been whether, or to what extent, questions by committee members should seek out a nominee’s personal views on current legal or constitutional issues or on past Supreme Court decisions that have involved those issues. Usually, when Senators at confirmation hearings have asked Supreme Court nominees to comment on topical legal and constitutional issues, the nominees have firmly declined to do so. In those situations, the nominees typically have taken the position that answers to questions which convey their personal views would conflict with their obligation to avoid appearing to make commitments, or provide signals, as to how they would vote as a Justice on future cases.”
Think of one job you’ve ever applied for where you’d have gotten it if you decided to play coy with the hiring managers. While it may be “inappropriate” for a judge to weigh in on a specific case before confirmation — for legitimate reasons, including not having studied and evaluated all the particulars, evidence and precedents against the “supreme Law of the Land,” — there’s no reason why general principles of understanding should be off-limits. Such hearings are supposed to be, among other things, high-level employment interviews, not pre-coronation ceremonies.
As such, here are questions gun owner rights advocates should expect the representatives they enable and support to ask judicial candidates, things no American have any trouble answering:
What did the Founders mean by “A well regulated militia”? What did the Founder mean by “being necessary to the security of a free State”? What did the Founders mean by “the right of the people to keep and bear arms”? What did the Founders mean by “shall not be infringed”? How can past Supreme Court opinion specifying protected arms as those being “in common use at the time” not apply to the types of firearms needed for militia service?
Now that he’s ruled, how do you think Judge Gordon would answer?
The thing is, having been given a pass, Gordon was confirmed by voice vote in 2013. That’s when Harry Reid, the Democrat politician Wayne LaPierre called “a true champion of the Second Amendment,” was Senate Majority Leader. And considering the tangential relationship between Gordon’s ruling and an earlier legislative action on weapons of militia utility, it’s fair to note a voice vote a few decades earlier allowed the politicians to give themselves cover on the fraudulent “passage” of the Hughes Amendment ban on machineguns manufactured after May 19, 1986.
Facts not in Evidence
So, what does all this have to do with manufacturer liability overriding PLCAA?
“Over the past decade, new devices called ‘bump stocks’ have been developed to enable reliable and continuous automatic fire by capitalizing on the AR-15’s recoil and removable stock,” Judge Gordon’s order asserts. “Videos available on the internet show the ease of installing a bump stock, and the Slide Fire bump stock can be installed with ‘nothing more than a screwdriver.’”
And what does that have to do with this case?
“On October 1, the shooter used the AR-15s equipped with bump stocks to fire 1,049 rounds in less than ten minutes, killing 58 people and injuring hundreds,” Gordon alleges. “One of the rounds hit Carrie Parsons in the shoulder. Carrie was transported to the hospital before succumbing to her wound.”
“The Parsons do not allege that this type of Colt AR-15 was used in the October 1 shooting,” Gordon adds in a footnote.
And as for facts not in evidence?
Michael Bloomberg-“seeded” website The Trace told us “A forensic firearms report performed by investigators shows further that the gunman used all but one of those bump stock-equipped rifles during his deadly attack. With the aid of the devices, the gunman unleashed a total of 1,049 rounds at the crowd below.” They were citing the Las Vegas Metropolitan Police Department report sections on “Evidence Recovery” and “Firearms Forensic Analysis.”
So that takes care of all reasonable doubt, right? Except for one inconvenient and as-yet unexplained truth that the government doesn’t want to answer any questions about and that the media doesn’t want to ask about: There has been no reported examination of the internal workings of those firearms.
“There are no external visual indicators (i.e. automatic sear pin hole) that the weapons have been converted into machineguns,” an ATF presentation on Las Vegas Recovered Weapons and Ammunition,” obtained through a Freedom of Information Act request declared. “However, on-scene ATF personnel were not allowed [emphasis in original] to physically examine the interior of the weapons for machinegun fire-control components or known machinegun conversion devices such as Drop-In-Auto Sears, Lightning Links, etc.”
ATF is saying in an official document that its experts don’t know if the firearms could have been internally modified to fire full auto.
ATF productions in response to the FOIA continued to create questions. It admits “the Firearms Enforcement Officer…has not yet been provided access to conduct a full examination.” Another page notes “the ATF FEO has not been able to conduct a full examination [of] them at this time.” Yet another page asserts, in all caps, “I CANNOT FURTHER COMMENT ON THE BUMP-FIRE TYPE DEVICES RECOVERED IN THIS CASE AT THIS TIME AS THE PROCESSING AND ASSESSMENT OF EVIDENCE ONGOING, INCLUDING WHETHER OR HOW THE FIREARMS WITH BUMP-STOCKS WERE USED//” (AGAIN WITH EMPHASIS ADDED).
To date, there has been no report showing the internals of the firearms were ever examined, by ATF’s Firearms Technology Branch or by any other law enforcement agency.
“There should be hundreds, if not thousands, of photos of firearms, their internal parts, and chamber photos to compare with photos of ejected cases that would support the claims made,” firearms designer and expert witness Len Savage, president of Historic Arms, LLC posits. “In this litigious world you know damned well the test firing of every firearm would have been video documented to prove the claims, with maybe even photos in each report for each firearm.”
“But none have ever been turned over in FOIA disclosures,” Savage observes. “Are we to believe they never opened the action nor photographed the internals of any firearm during their examination?”
So, what is it I’m trying to imply here? Hey, I’m merely repeating the government’s words. If anyone infers more into it, that could quickly be cleared up if those who have custody of the evidence wanted to give some straight answers.
But the bottom line is, ATF did not disclose that they had not examined the firearms prior to promulgating the rule banning “bump stocks.” And now that all previous rules and rationales have been thrown out the window, and they have been designated “machineguns” by the Trump administration, we find ourselves facing outrageous, politically-motivated absurdities like Gordon’s semi-auto ruling, which if upheld, spells nothing less than the “legal” evisceration of the Second Amendment.”
That’s the door NRA opened when Wayne LaPierre and the as-yet-to-be-purged Chris Cox issued a “joint statement” declaring “In Las Vegas, reports indicate that certain devices were used to modify the firearms involved. Despite the fact that the Obama administration approved the sale of bump fire stocks on at least two occasions, the National Rifle Association is calling on the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) to immediately review whether these devices comply with federal law. The NRA believes that devices designed to allow semi-automatic rifles to function like fully-automatic rifles should be subject to additional regulations.”
Once that door was opened and the signal had been sent that “the 800-pound gorilla” had his back on political fallout, who is surprised that a politician walked through it, and took more than was being willingly surrendered. After all, it’s not like “bump stock” owners aren’t a marginalized niche that could be thrown under the bus with minimal perceived repercussions as a matter of political expediency.
Is This the Hill to Die On?
That’s a question put to activists objecting to the Trumpstock ban by gun owners foolish enough to think it was “just” about such devices. Some get angry and obnoxious about it defending “stupid toys,” arguing we have bigger issues to confront, and not understanding that if they think this is just about bump stocks, they’re missing the point.
If the Supreme Court ultimately upholds the ban and President Trump gets away with this usurpation of undelegated power, guess what the Democrats will be able to pull the next time they take the White House. And as Judge Gordon’s ruling shows, they might not have to wait.
“In particular, one appellate judge was very concerned that, in the future, the ‘ATF could choose to redefine “machine gun”’ as including all semiautomatic weapons that can be modified with a device like a bump stock,’” Gun Owners of America alerted supporters in an update on its lawsuit against the ban. “Of course, this is exactly the point that GOA has made in its briefs to the court.
“If the ATF can claim that a bump stock can turn an AR-15 into a machine gun, then the same can be said about rubber bands or belt loops,” GOA elaborated. “Given the latter two items are found in every home in America, a future anti-gun president could use the doctrine of ‘constructive possession’ to justify a ban on all semi-automatic rifles in the country.
“Here’s the bottom line,” GOA concluded. “If bump stocks can be defined as ‘machine guns’ because they supposedly cause a semi-automatic to fire automatically, then, using the same line of reasoning, semi-automatics are machine guns too.”
Does anybody still have stupid questions about hills?
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms Newsand AmmoLand Shooting Sports News, he blogs at “The War on Guns: Notes from the Resistance,” and posts onTwitter: @dcodrea and Facebook.