Justice Department Issues Proposal To Ban Bump Stocks

The Department Of Justice is proposing a rule change that would ban bump stocks, but it could run into legal problems.

The Justice Department is proposing a change in regulations that would ban bump stocks, devices which can be attached to many semi-automatic weapons to cause them to perform in essentially the same manner as a fully automatic weapon:

WASHINGTON — Attorney General Jeff Sessions said on Friday that the Justice Department was proposing to ban so-called bump stocks through regulations rather than wait for Congress to act, a move that defies recommendations by federal law enforcement officials and could subject the department to litigation from gun rights groups.

Mr. Sessions’s announcement came moments after President Trump said on Twitter that the Justice Department would imminently announce a rule banning bump stocks.

It also comes amid rising public pressure on Washington to curb gun violence after a mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla., that left 17 people dead last month. Students will gather Saturday in Washington to protest gun violence for an event called March for Our Lives.

The Justice Department’s proposed rule “would define ‘machine gun’ to include bump-stock-type devices under federal law — effectively banning them,” Mr. Sessions said in a statement.

The proposed bump stock ban would defy the conclusion of Justice Department officials who have said that they could not, under existing law, stop the sales of bump stocks, accessories that allow semiautomatic guns to mimic automatic fire, and that congressional action was needed to ban them. But Mr. Sessions said the department had worked around those concerns.

“After the senseless attack in Las Vegas,” Mr. Sessions said, “this proposed rule is a critical step in our effort to reduce the threat of gun violence that is in keeping with the Constitution and the laws passed by Congress.”

The 55-page proposal, which was published for public comment, said it was redefining machine guns to include bump stocks because “such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.”

The proposal would force bump stock owners to surrender or destroy them the day the rule would go into effect.

A previous Justice Department review, done by the Bureau of Alcohol, Tobacco, Firearms and Explosives, was prompted by the mass shooting last fall in Las Vegas, where a gunman killed 58 people using semiautomatic weapons outfitted with bump stocks.

By working around the A.T.F.’s earlier interpretation, the Justice Department essentially said that the statute had not changed, but that it could now be read in a different way.

By reinterpreting the conclusion that was made under President Barack Obama, the Justice Department could open itself up to lawsuits when the rule is finalized. Litigation would tie up the bump stock ban in the courts.

Legal experts say that groups that sue could win because bump stock makers specifically designed the devices so they could not qualify as machine guns under the law.

“When you pull the trigger once on a machine gun, multiple bullets fire, whereas each pull of a trigger fires a single round with bump stocks,” said Josh Blackman, a professor at South Texas College of Law in Houston. “People designed it this way deliberately to keep bump stocks from being defined as machine guns under the statute. It’s like the difference between tax avoidance and tax evasion. The first is specifically to avoid being illegal.”

The controversial new rule is in keeping with Mr. Sessions’s practice of closely hewing to White House political directives, sometimes remaining silent in the face of criticism from Mr. Trump and other times rebuking his own employees.

Before the Justice Department issued any measures of its own, Mr. Trump had publicly declared that he would use executive authority to ban bump stocks, and he ordered the department to find a way to prohibit them.

As a legal matter, it could prove difficult for the Trump Administration to defend this ban in court, as The Washington Post noted yesterday. In 2010, the ATF decided that it lacked the authority to ban bump stocks because the device itself does not meet the definition of a machine gun under the 1986 law that applies in this situation. That law banned the sale of machine guns manufactured after 1986 to members of the general public. The law also severely restricts the sale of such weapons manufactured prior to 1986 by requiring a member of the general public seeking to purchase such an item to undergo a background check that is far more thorough than the one utilized for the purchase of otherwise legal weapons today and mandates the payment of significant taxes on the purchase that can run into amounts well over $10,000. In ruling on the issue back then, the ATF concluded that it could not ban bump stocks did not fall under the law because they did not alter a gun’s trigger mechanism, which is the key aspect of a weapon that the 1986 law looks to in defining what is and is not a machine gun. Based on that, the Trump Administration could find it hard to defend the ban in Court when it faces a seemingly inevitable challenge.

Putting the legal issues to the side, though, it seems clear that the policy arguments in favor of banning bump stocks are far stronger than those opposed to it. The only question is how that is or can be brought about.

In the immediate aftermath of the massacre in Las Vegas that left 57 people dead and hundreds injured after a man using semi-automatic weapons equipped with bump stocks shot at a crowd gathered in an outdoor arena for a country music festival, there was much focus on these devices which were largely unknown even among people who are self-admitted gun hobbyists and enthusiasts. Even strong proponents of gun rights (see here, here, and here, for example) argued that there was no defensible reason for such devices to be legal, something I argued myself just a few days after the shooting. Many Republicans on Capitol Hill agreed, and at least publicly stated that they would be willing to move forward on Congressional action to ban the device. Additionally, polling showed that the American public as a whole was very supportive of the idea of banning these add-ons as well as other gun control measures. At the time at least, it seemed as though this would be one small gun control measure on which everyone could agree and that we could see quick action on the part of Congress on what seems like a fairly straightforward issue. Unfortunately, it soon became apparent that this initial optimism was misplaced. With the House and Senate both focused at the time on the Republican tax plan, the bump stock issue quickly faded from away and momentum on any kind of legislation on the issue slowed to a crawl on Capitol Hill. In the end, no action was taken on the issue and nobody seemed to notice. In the wake of the shooting in Parkland, Florida, though, attention was focused on the issue again and President Trump instructed the Justice Department to examine the issue and to issue a regulation banning the devices. This is what led to the proposed regulation released last night.

The regulation won’t go into immediate effect. Instead, it will be presented following the procedures outlined in the Administrative Procedures Act, which allow for a public comment and review period before a regulation can go into effect. At the end of that period, an agency could decide to pull the regulation rather than allowing it to go into effect but that seems unlikely to happen here. Instead, the regulation will go into effect. Whether it faces legal challenges after that is something only time will tell.

Here is the Justice Department’s proposal:

Dept. of Justice Bump Stock Proposal by Doug Mataconis on Scribd

FILED UNDER: Donald Trump, Guns and Gun Control, Law and the Courts, Politicians, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. James Pearce says:

    Mr. Trump had publicly declared that he would use executive authority to ban bump stocks, and he ordered the department to find a way to prohibit them.

    If there is one thing I like about Trump it’s this “find a way” attitude he has, at least when its applied to something admirable. I wonder what good will be introduced into the world if some admirable people had similar attitudes.




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  2. de stijl says:

    @James Pearce:

    This is meant as constructive feedback.

    There are a thousand ways to react to the bump stock ban, but your take that Trump is really a Git’R’Done guy at heart and at the end of the day, is waaay down the list.

    This was the least objectionable thing we can legislate that won’t unalterably alienate the NRA and their direct money contributions and their donor base.

    Trump had nothing to do with this and the bump stock ban is window dressing.

    Trump doesn’t “find a way”, he merely agrees with the last person who talked to him on a particular subject because he is functionally illiterate and does not / cannot read up on any subject that is not him. He literally employs people to print “internet” things out for him for him to read later.

    He uses Twitter as if it were his journal.




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  3. de stijl says:

    @de stijl:

    Here is a way.

    Legislatively ban all magazines greater than 10 round capacity. No backsies / no grandfather clauses. There is no practical sporting or target-practice reason for 30 round magazines to exist.

    The exist because they make fantasists fantasize that they are really, objectively powerful no matter what everyone else says. Movie scenarios and false narratives play in their heads on a constant loop along with the “It takes a good guy with a gun to kill a bad guy with a gun” earworm.

    If you need to shoot prairie dogs or coyotes to protect your stock (which is all a .223 chambered rifle is good for outside of military use) then buy a damned Ruger ranch rifle.

    The only folks who could conceivably legitimately use a 30 round .223 are wolf researchers getting bum rushed by a pack in the bush and that would be a million in one chance. They would be better served with a flash-bang in that scenario, anyway.

    Obviously, bump stocks should banned and good on them for doing it. But that is not due to Trump’s “find a way” talent. It was the least objectionable measure to appear to do something without doing anything meaningful.

    Here is a meaningful change. Limit magazines designed for semi-automatic rifles at ten rounds. Limit semi-auto pistol magazines at ten rounds. Maybe cops could have more bullets than ten per magazine. Maybe.

    For rifles, I could easily be talked down to a five round cap.

    But revolvers should be exempted. Revolvers should be six shooters because tradition and the whole false narrative of the Wild West. I am an American and I value our traditions false or not.

    I will gladly live in a world where a mass shooter intent on killing everyone he sees has to reload after 10 shots. I’d prefer a different America entirely, but as an incremental step, I will take it.




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  4. James Pearce says:

    @de stijl:

    your take that Trump is really a Git’R’Done guy at heart

    Well, to be fair, I didn’t praise his “Git’R’Done” grit. I noted his “find a way” attitude, which is not always a good thing by the way and is most often a decidedly bad thing, and wondered what good can be introduced into the world if a good and decent person had a similar attitude.

    Like…why do we have to wait for Donald Trump to ban bump stocks? What if we lived in a world where it was the good, decent people who had initiative to “Git’R’Done” and it wasn’t just the shitheads?




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  5. Stormy Dragon says:

    @de stijl:

    Legislatively ban all magazines greater than 10 round capacity. No backsies / no grandfather clauses.

    Do you know why gun laws always have grandfather clauses? Because if they didn’t, the Fifth Amendment would require the government to recompense all of the existing owners.




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  6. de stijl says:

    Banning bump stocks is kindergarten stuff.

    Bump stocks only legally exist because they evade the text of a law written in 1934 that didn’t cover all future contingencies. Back then, legislators thought that their future compatriots could deal with such things that affected the future public health arena. Their lack of foresight is notable.

    Trump was simply president when his political appointees tossed a bone at the mob in the hope they disband before they have to enact actual, meaningful change.

    But your first take is that Trump is “a find a way” guy but I wish he had a better moral compass.




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  7. michael reynolds says:

    @James Pearce:
    But he doesn’t ‘find a way.’ He just says, “find a way,’ and nothing happens. When Trump says, ‘find a way,’ what he means is, ‘this subject is complicated and it’s not about me, so whatever. . .”




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  8. de stijl says:

    @Stormy Dragon:

    Because if they didn’t, the Fifth Amendment would require the government to recompense all of the existing owners.

    So pay them fair market value for their gun porn accoutrements. As far as I know, nothing precludes the government from paying fair market value for property they take by legislative action.




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  9. James Pearce says:

    @michael reynolds:

    But he doesn’t ‘find a way.’ He just says, “find a way,’ and nothing happens.

    Oh man, I wish that was the case. I mean, I don’t think Trump is super-clever or hyper-competent, but the dude is nothing if not tenacious.




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  10. wr says:

    @James Pearce: “Like…why do we have to wait for Donald Trump to ban bump stocks?”

    Because the Republican party is a wholly owned subsidiary of the NRA. Anything else I can help you with?




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  11. de stijl says:

    Here is another meaningful change. Prohibit the the sale of all “assault rifle”-styled weapons / AR-15 clones chambered in this mostly impractical caliber unless they are neon pink. They would also get cheaper if you lard on more kawaii girly and faggy features. You could add a full-on suppressor to your bad-ass weapon system simply by accepting a “I [heart] horsies” tattoo applied to your forehead at no cost to you.

    And they must contain a chip that will play “You Spin Me Right ‘Round” at ~95-105 dBs when it is in contact with a person.

    The full chorus on a constant loop:

    You spin me right round, baby
    Right round like a record, baby
    Right round round round
    You spin me right round, baby
    Right round like a record, baby
    Right round round round

    Plus you would have to contact every neighbor in person and inform them that you own a Hello Kitty! adorably cute AR-15 clone covered in glitter that plays Dead Or Alive when you stroke it, and you fantasize about killing people because that makes your genitals tingle.




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  12. Just 'nutha ig'nint cracker says:

    @de stijl:

    Maybe cops could have more bullets than ten per magazine. Maybe.

    Back in the late 80s or early 90s, a man named Robert Fitzsimons (IIRC) was the police chief in Seattle. At a press conference when asked if Seattle officers needed Uzis because drug dealers had them, he was quoted as saying something to the effect that an officer who could not kill an armed suspect with one or two shots needed time at the shooting range, not an Uzi.

    Because I live on the Left Coast, he was summarily removed by the City Council and Mayor for not realizing that the correct police policy for deadly force should be “shoot to intimidate or wound at most.” While I will agree that he was notably and unwisely terse with his candor to the press, I would hold that the rules of engagement haven’t changed much, so I see no reason for police to carry weapons other than standard issue.




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  13. Just 'nutha ig'nint cracker says:

    @James Pearce: Alas, we don’t, so we have to wait for the shirtheads to get things done. It’s why so little gets done, and we only have ourselves to blame for electing mostly shirtheads to begin with.




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  14. Just 'nutha ig'nint cracker says:

    @de stijl: Because I have seen more than one Hello Kitty motorcycle faring sized for a Harley, I’m not sure this idea will work the way you hope, but I did like the laugh.




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  15. teve tory says:

    I lost interest in gun control years ago when I realized that the only thing that would be really effective would be banning all semiautos, and that we were many years/decades away from the voting population supporting that.

    Here in Florida, for instance, the legislature is run by a single 78-yro NRA lobbyist.




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  16. Stormy Dragon says:

    @de stijl:

    So pay them fair market value for their gun porn accoutrements. As far as I know, nothing precludes the government from paying fair market value for property they take by legislative action.

    The problem is you’re talking tens of billions of dollars to afford doing that.




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  17. James Pearce says:

    @wr:

    Because the Republican party is a wholly owned subsidiary of the NRA. Anything else I can help you with?

    Yes. You’ve noted the obstacles in our path.

    Can you then explain why our side is unwilling to negotiate them?




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  18. de stijl says:

    @Stormy Dragon:

    Worth every penny. Tens of billions is basically a rounding error in the federal budget.

    We did “Cash For Clunkers” FFS, this a cake walk.




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  19. wr says:

    @James Pearce: “Can you then explain why our side is unwilling to negotiate them?”

    Negotiate with whom?




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  20. James Pearce says:

    @wr: Not negotiate with.

    Negotiate the obstacle.




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  21. James Pearce says:

    @de stijl:

    Worth every penny. Tens of billions is basically a rounding error in the federal budget.

    A gun buyback program would be, yes, and if the cost is what’s objectionable, we can skip the buyback and go right to a ban.

    I’m pretty sure the “fair market value” of contraband is still nothing. (Although I suppose we could refer to the street value during sentencing.)




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  22. de stijl says:

    @Just ‘nutha ig’nint cracker:

    At a press conference when asked if Seattle officers needed Uzis because drug dealers had them, he was quoted as saying something to the effect that an officer who could not kill an armed suspect with one or two shots needed time at the shooting range, not an Uzi.

    Witness the young man killed in his own backyard Sacramento a few days ago because he had the temerity to flee while holding a cell phone. He took 20 rounds because he was holding on to his phone. How many shots missed? At ~20-30 feet likely 60 to 75%. The reporting was unclear: was he hit 20 times, or did the cops fire 20 rounds?

    Guess it doesn’t really matter because that kid as dead as he can be regardless. Just like the tens of thousands like him because he was not properly deferential. Actually, it is not an irrational action because deferential compliance is no guarantee of surviving an interaction with the police.

    Cops have internalized two wrong messages.

    1. Cop lives are worth more than random citizens
    2. Young black men will kill you unless you kill them first

    I am the wrong guy to ask about cop policy because I have too much history seeing firsthand and hearing about secondhand how street cops behave. I was briefly a street kid and street kid adjacent for years. I am basically unable to see cops other than as sadistic thumpers and rapists, or silently complicit to those crimes. Even”good” cops are complicit because they rationalize away this behavior and do not enforce the law on their brothers.




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  23. michael reynolds says:

    @James Pearce:
    Trump? Tenacious? Say what?

    Trump ties.
    Trump University.
    Trump steaks.
    Trump casino.
    Failed to kill Obamacare.
    Didn’t get a wall.
    Certainly hasn’t gotten a dime from Mexico to pay for it.
    Didn’t get a tax bill geared for the middle class.
    Didn’t get a serious infrastructure bill.
    Didn’t get his way on DACA (depending on which of his lies you prefer.)
    Has not convinced Europe on the JCPPOA.
    Has not convinced anyone on the TPP so just gave it all away to China.

    I can go on. He is anything but tenacious because he doesn’t have any beliefs beyond narcissism. Tenacious? No, tenacious was Obama getting Obamacare. Tenacious is FDR ramming Lend-Lease through, or Lincoln getting the 13th amendment passed. The sum total of what this cretin has managed to do are things any GOP president could have done – a Supreme Court seat, a massive deficit-busting Christmas tree of a spending bill, and a tax cut for the rich.




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  24. de stijl says:

    @wr:

    We just witnessed “negotiate” phase into an active verb in real time. Cool!




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  25. Mikey says:

    @James Pearce: The only obstacle I’m negotiating is the stairs that lead up to my polling place, because that’s the only way to get rid of the NRA’s bought and paid for Republicans.

    I suppose if you consider the “donate” button on Democratic candidates’ websites an obstacle, I’ll negotiate that, too.




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  26. James Pearce says:

    @michael reynolds:

    The sum total of what this cretin has managed to do are things any GOP president could have done

    He beat the Republican party and over a dozen better qualified candidates. He beat the Democrats and their better qualified candidate. He tenaciously lies, all the time. He tenaciously chases women, all the time. He calls people names on twitter, tenaciously.

    The dude is tenacious, in all the wrong ways.

    @de stijl:

    We just witnessed “negotiate” phase into an active verb in real time.

    Here, I’ve removed the line space to make it easier to match up the pronoun. Seems pretty clear to me.

    “You’ve noted the obstacles in our path. Can you then explain why our side is unwilling to negotiate them?”




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  27. James Pearce says:

    @Mikey:

    The only obstacle I’m negotiating is the stairs that lead up to my polling place, because that’s the only way to get rid of the NRA’s bought and paid for Republicans.

    That’s the ticket, Mikey! Vote for the fighters, not the shruggers.




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  28. de stijl says:

    @James Pearce:

    A gun buyback program

    I am not advocating for a gun buyback. People can keep any AR-15 / AK clones they already own and can buy new adorably cute pink ones if they want to.

    Here is what I am in the business of: social stigmatization

    (That, and limiting all semi-auto bullet firing ballistic weapons to 10 rounds or less which is sound policy that any aware person can think of inside of five minutes of mental chewing. Universal Background Check and 10 round maximum magazine size for non-military use. It won’t be easy because we are politically retarded in this matter).

    Not social stigmatization of all gun ownership (hell, I am a gun owner), but social stigmatization of the ownership of / and advocacy for so-called “combat” or “tactical” firearms that has poisoned our shores for the last 25 years or so.

    This is actually new (well, new-ish). When I was a kid, guns were essentially tools. You used them to hunt ducks or deer, or to clear out dangerous or bothersome critters if you were a farmer /rancher and even that was frontier / borderlands hold-over tradition mostly.

    Now some people covet them and basically worship as talismans and people-killing weapons rather than a simple tool.

    The long-term plan is to make this fetish object and the associated fetishistic behavior socially unacceptable in polite company. Like naked racism or misogyny. Consigned to the dustheap of stupid crap we have moved on from.




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  29. michael reynolds says:

    @James Pearce:
    I’m not sure we agree on the meaning of ‘tenacious.’




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  30. de stijl says:

    @James Pearce:

    Post-college, I ended up with a house-mate who used “jew” as an active verb. As in, “When I bought my MG I jewed him down from $6500 to $5250.” This was back when you could buy an MG, and for that amount. Don’t get me wrong, it was a bad-ass car – I was driving an ancient Olds Omega at that time which perpetually stank of coolant.

    He also said that fossils were God’s way of sorting the wheat from the chaff and that people who thought fossils are real will burn in hell. He was a good Xtian man who cheated on his GF whenever the opportunity arose. Second worst male roommate I ever had.




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  31. de stijl says:

    @michael reynolds:

    I need professional feedback:

    is

    Second worst male roommate I ever had.

    great, or obvious?

    Arguments for:

    there are so many unstated things in that phrase that I am now interested in. Who was first worst? Who was third? What outrageous crap did they do? What does “male” mean in this context? Is this dude gay? Is it even relevant? Ach! I don’t even know! Did he even ever have female housemates? What the hell those gals do to him?

    Arguments against:
    There are none. I’ve answered my own question. It’s a great line and probably even a “keeper”. Sorry to waste your time, dude.




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  32. Just 'nutha ig'nint cracker says:

    @James Pearce: “He beat the Republican party and over a dozen better qualified differently unqualified candidates.”

    FTFY




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  33. James Pearce says:

    @de stijl:

    The long-term plan is to make this fetish object and the associated fetishistic behavior socially unacceptable in polite company.

    In a lot of ways that has already happened. My long-term plan is to get some give from the pro-gun crowd. They want to call us gun-grabbers when we call for background checks and magazine limits and such. Okay, so let’s call for gun-grabbing and see if they call for background checks and magazine limits and such. The “let’s be reasonable” ship has already sailed.

    @michael reynolds:

    I’m not sure we agree on the meaning of ‘tenacious.’

    Well you know how these things work. It’s only got the one definition, but certain words take on connotations. “Tenacious” has a scrappy little underdog quality to it in some contexts. Not the context of Trump, but some contexts.

    Trust me, you don’t want to be retrieving the football from a yard with a tenacious little dog in it. He will chase you up the fence and bite your ankle.




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  34. Stormy Dragon says:

    @James Pearce:

    I’m pretty sure the “fair market value” of contraband is still nothing. (Although I suppose we could refer to the street value during sentencing.)

    That’s not how the Fifth Amendment works. Same as how the local governments can’t condemn a house and then take it for free because condemned property has no value.




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  35. Blue Galangal says:

    @Just ‘nutha ig’nint cracker: “He beat the Republican party and over a dozen better qualified differently unqualified candidates who weren’t backed by/in hock to Putin.”

    FIFYA




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  36. An Interested Party says:

    I mean, I don’t think Trump is super-clever or hyper-competent, but the dude is nothing if not tenacious.

    Oh yeah, he was so tenacious that he claimed that he would veto the budget bill and then turned around with his tail tucked between his legs and signed it anyway, whining about “I will never sign another bill like this again”…that’s some impressive tenacity there…meanwhile, here’s a much better example of tenacity…




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  37. de stijl says:

    It is staring you in the face!

    Not one of you idiots could offer up a Tenacious D’s Wonderboy link after all that build-up?!

    This is what I get for working with amateurs. I’m giving you *GOLD*, people, and you just ignore me?




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  38. James Pearce says:

    @Stormy Dragon:

    That’s not how the Fifth Amendment works.

    Tell that to the NRA. We just want “common sense” gun restrictions and they act like we’re coming to round them up in concentration camps.

    @Blue Galangal:

    candidates who weren’t backed by/in hock to Putin

    Sure, but what Republicans love about Trump isn’t his Russian connections. They love him because he’s an asshole.

    @An Interested Party:

    meanwhile, here’s a much better example of tenacity…

    While Emma Gonzalez is tenacious, I would use other words to describe her speech, which was mostly silence. Brave, powerful, determined.

    From used car lots to handsy bosses, tenacity is not always a good thing.

    @de stijl:

    Not one of you idiots could offer up a Tenacious D’s Wonderboy link after all that build-up?!

    I’m more partial to Master Exploder myself.

    “I do not need a microphone
    My voice is f’ing powerful”




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  39. Stormy Dragon says:

    @James Pearce:

    they act like we’re coming to round them up in concentration camps.

    Yeah, where would they get that impression?

    @James Pearce:

    So grab your steel-toed boots and your bike chain and your hockey gloves and whatever accoutrements you need, and go get your thug on shamelessly and without illusion. Just understand that physical size and physical strength and perhaps even moral ruthlessness will be the gauge that determines who “wins.”

    I must say, I am surprised to discover that OTB is apparently okay with the blog being used to openly advocate for political violence.




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  40. James Pearce says:

    @Stormy Dragon:

    Yeah, where would they get that impression?

    From the dishonest media sources they outsource their thinking to.

    I must say, I am surprised to discover that OTB is apparently okay with the blog being used to openly advocate for political violence.

    And yet the bad faith is not surprising at all….

    I’m mocking protestors there, one of my favorite hobbies. If you mistook that for an open call for political violence, well, I can’t do nothing for ya, man.




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  41. Just 'nutha ig'nint cracker says:

    @Blue Galangal: Much improved. I agree!




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