bumpstock ban

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Chief Justice Roberts Refuses To Issue Stay

March 26, 2019 by 1 Comment

The Firearms Policy Coalition and the Firearms Policy Foundation released this statement by Twitter concerning the refusal of Chief Justice John Roberts to issue an emergency stay of the bump stock ban rule.

Updates on the case will continue to be posted at www.bumpstockcase.com.

It should be remembered that the key issue is not really bump stocks. The key issue is whether or not any government agency can reinterpret the black letter law to outlaw something or some action that they had expressly said was legal earlier.

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District Court Denies TRO In Bump Stock Cases

February 26, 2019 by 3 Comments

Judge Dabney Friedrich of the US District Court for the District of Columbia turned down a motion for a temporary restraining order to prevent the Trump Administration’s bump stock ban from going into effect. This ruling impacts a few of the bump stock ban challenges including Guedes, FPC v. Whitaker, and Codrea v. Barr.

In his ruling Judge Friedrich said that the BATFE was entitled to Chevron deference allowing it to redefine the actual meaning of words.

Most of the plaintiffs’ administrative law challenges are foreclosed by the Chevron doctrine, which permits an agency to reasonably define undefined statutory terms. See Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984). Here, Congress defined “machinegun” in the NFA to include devices that permit a firearm to shoot “automatically more than one shot, without manual reloading, by a single function of the trigger,” 26 U.S.C. § 5845(b), but it did not further define the terms “single function of the trigger” or “automatically.” Because both terms are ambiguous, ATF was permitted to reasonably interpret them, and in light of their ordinary
meaning, it was reasonable for ATF to interpret “single function of the trigger” to mean “single pull of the trigger and analogous motions” and “automatically” to mean “as the result of a self- acting or self-regulating mechanism that allows the firing of multiple rounds through a single pull of the trigger.” ATF also reasonably applied these definitions when it concluded that bump stocks permit a shooter to discharge multiple rounds automatically with a single function of the trigger. That this decision marked a reversal of ATF’s previous interpretation is not a basis for invalidating the rule because ATF’s current interpretation is lawful and ATF adequately explained the change in interpretation.

The plaintiffs have already said that they plan to appeal this to the DC Court of Appeals.

You can read the reaction of the plaintiffs in this joint statement by the Firearms Policy Coalition and the Firearms Policy Foundation.

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

December 27, 2018 by 3 Comments

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!