Acting AG Matthew Whittaker Archives -

FPC V. Whitaker – A Procedural Attack On The Bump Stock Ban

The Firearms Policy Coalition did two things yesterday. They removed themselves from Guedes v. BATFE by voluntarily dismissing all claims in that case. Concurrently, they then filed a new case, FPC v. Whitaker, which challenges the authority of Acting Attorney General Mattew Whitaker to even sign off and authorize the issuance of the Final Rule banning bump stocks. In other words, they removed themselves from the merits case and filed a new case based on procedure.

You are probably wondering why they are changing course after the first lawsuit was filed. To understand this you must first think of the goal of all of these lawsuits which is to stop the bump stock ban. Then ask yourself which will get decided quicker – a lawsuit with extensive hearings from experts testifying as to why the bump stock is not a machine gun or one that says regardless of what is being banned that Matthew Whitaker doesn’t have the authority to even issue a Final Rule?

Take this a step further and look at how judges – especially liberal judges – have treated Second Amendment issues. The answer is not well and certainly not consistent with the intent of Heller and McDonald. Thus, even if you get an “Obama judge”, you stand a chance of winning because they can rightfully say they are not deciding a Second Amendment issue but rather an Administrative Procedures Act issue. Actually, it would be helpful to get a Obama or Clinton appointee who has nothing but disdain for President Trump and who would see this as a way of slapping him down. They get some perverse pleasure out of it and we get an anti-gun rule stopped. Moreover, this doesn’t stop Guedes or the case filed by Gun Owners of America on the merits as they will continue. This really is three-dimensional chess.

The lead attorney in the case is Tom Goldstein who is one of the premier appellate attorneys in the nation who has personally argued 42 case before the Supreme Court and is the co-founder of the SCOTUSblog. He is being assisted in the case by Daniel Woofter of Goldstein and Russell.

The suit is seeking both preliminary and permanent injunctions against the enforcement of the Final Rule banning bump fire stocks and is also seeking a declaratory judgment that the rule is invalid as Acting Attorney General Matthew Whitaker did not and does not have the authority to sign the rule.

A preliminary injunction is necessary to prohibit the Rule from taking effect 90 days from
now and to prevent Mr. Whitaker from unlawfully exercising authority as Acting Attorney
General. Mr. Whitaker’s designation as Acting Attorney General violates both the Constitution’s
Appointments Clause, U.S. Const. art. II, § 2, cl. 2, and the applicable statutes, 28 U.S.C. § 508; 5
U.S.C. §§ 3345 et seq. Thus, he was not authorized to sign the Rule, and the Rule cannot go into
effect without irreparably harming Plaintiff and its members. Accordingly, the declaratory,
injunctive, and other relief requested herein is necessary to prevent the implementation or
enforcement of this illegal regulation.

The request for relief asks the US District Court for the District of Columbia for five things:

(a) ENJOINS the Rule, Bump-Stock-Type Devices, 83 Fed. Reg. 66514 (Dec. 26, 2018), from
going into effect, if at all, for at least 90 days after resolution of this action and all appeals;
(b) ENJOINS Matthew G. Whitaker from exercising any authority as Acting Attorney General,
in this or any other matter;
(c) DECLARES that the Rule is invalid as signed by Matthew G. Whitaker;
(d) DECLARES that Matthew G. Whitaker’s designation as the Acting Attorney General
violates the Appointments Clause and 28 U.S.C. § 508; and
(e) DECLARES that Matthew G. Whitaker is not the Acting Attorney General.

Regardless of which way the District Court rules on this matter, you know it will be appealed. If the government loses in District Court, they must appeal so as to try and preserve Whitaker’s authority to act. If the government wins, FPC will appeal because it is their right to do so. I can see this case ending up before the Supreme Court as it is a direct challenge to President Trump and his authority to name as Acting Attorney General someone who has not been confirmed by Congress.

As I wrote earlier, this is three dimensional chess and it will be interesting to see how the courts rule on this.

UPDATE: I just checked the judge assigned to the case. It is Ketanji Brown Jackson who was appointed to the District Court by President Barack Obama and who was confirmed in March 2013. She also had clerked for Justice Stephen Breyer. This will be interesting!

Bumpstock Ban, Part I

When I wrote a blog post yesterday entitled BOHICA I didn’t think it would come first from what ostensibly is our own side. I was wrong. Acting Attorney General Matthew Whitaker announced today that the final rule declaring that bump fire stocks are “machine guns”. Below is his announcement:

Today, Acting Attorney General Matthew Whitaker announced that the Department of Justice has amended the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), clarifying that bump stocks fall within the definition of “machinegun” under federal law, as such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.

Acting Attorney General Whitaker made the following statement:

“President Donald Trump is a law and order president, who has signed into law millions of dollars in funding for law enforcement officers in our schools, and under his strong leadership, the Department of Justice has prosecuted more gun criminals than ever before as we target violent criminals. We are faithfully following President Trump’s leadership by making clear that bump stocks, which turn semiautomatics into machine guns, are illegal, and we will continue to take illegal guns off of our streets.”

On February 20, 2018, President Trump issued a memorandum instructing the Attorney General “to dedicate all available resources to… propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.” In response to that direction the Department reviewed more than 186,000 public comments and made the decision to make clear that the term “machinegun” as used in the National Firearms Act (NFA), as amended, and Gun Control Act (GCA), as amended, includes all bump-stock-type devices that harness recoil energy to facilitate the continuous operation of a semiautomatic firearm after a single pull of the trigger.

This final rule amends the regulatory definition of “machinegun” in Title 27, Code of Federal Regulations (CFR), sections 447.11, 478.11, and 479.11. The final rule amends the regulatory text by adding the following language: “The term ‘machine gun’ includes bump-stock devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.” Furthermore, the final rule defines “automatically” and “single function of the trigger” as those terms are used in the statutory definition of machinegun. Specifically,

“automatically” as it modifies “shoots, is designed to shoot, or can be readily restored to shoot,” means functioning as a result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through the single function of the trigger;

“single function of the trigger” means single pull of the trigger and analogous motions.

Because the final rule clarifies that bump-stock-type devices are machineguns, the devices fall within the purview of the NFA and are subject to the restrictions of 18 U.S.C. 922(o). As a result, persons in possession of bump-stock-type devices must divest themselves of the devices before the effective date of the final rule. A current possessor may destroy the device or abandon it at the nearest ATF office, but no compensation will be provided for the device. Any method of destruction must render the device incapable of being readily restored to its intended function.

I don’t own a bumpstock nor do I know anyone personally that does. However, the danger in this rule is the precedent it sets. This can and probably will be expanded in the future to include any item that accelerates or makes a semi-automatic firearm easier to shoot. Things like enhanced triggers, JP Enterprise springs, or even a trigger job. This final rule perverts the black letter law of the National Firearms Act as well as the Congressional intent.