DC Circuit’s April Fools Joke On The Constitution

The US Court of Appeals for the District of Columbia released its decision in the combined cases of Guedes et al v. BATFE et al and Codrea et al v. Barr. It was a per curiam decision with Judge Karen Henderson dissenting in part and concurring in part. The court sided with the District Court in denying the preliminary injunction of the bump stock rule.


: In October 2017, a lone gunman armed with
bump-stock-enhanced semiautomatic weapons murdered 58
people and wounded hundreds more in a mass shooting at a
concert in Las Vegas, Nevada. In the wake of that tragedy, the
Bureau of Alcohol, Tobacco, Firearms and Explosives
(“Bureau”) promulgated through formal notice-and-comment
proceedings a rule that classifies bump-stock devices as
machine guns under the National Firearms Act, 26 U.S.C.
§§ 5801–5872.
Bump-Stock-Type Devices, 83 Fed. Reg.
66,514 (Dec. 26, 2018) (“Bump-Stock Rule”). The then-
Acting Attorney General Matthew Whitaker initially signed the
final Bump-Stock Rule, and Attorney General William Barr
independently ratified it shortly after taking office. Bump-
stock owners and advocates filed separate lawsuits in the
United States District Court for the District of Columbia to
prevent the Rule from taking effect. The district court denied
the plaintiffs’ motions for a preliminary injunction to halt the
Rule’s effective date.
Guedes v. Bureau of Alcohol, Tobacco,
Firearms, and Explosives
, 356 F. Supp. 3d 109 (D.D.C. 2019).
We affirm the denial of preliminary injunctive relief.

 The case was heard by Judges Karen Henderson, Sri Srinivasan, and Patricia Millett. Srinivasan and Millett were appointed to the Court of Appeals by former President Obama while Judge Henderson by President George H. W. Bush.

In reaching their decision, the court found that BATFE was entitled to Chevron deference and that the plaintiffs were unlikely to succeed in their case as a result.

Judge Henderson parted company with her colleagues and said that the bump stock rule does contradict the statutory definition of a machine gun. As such, she would have granted the injunction.
She examined the history of the National Firearms Act, rulings of BATFE, the previous rulings that the bump stock was NOT a machine gun, the slow motion video evidence submitted to the District Court, and the affidavit of Richard Vasquez who had done the technical evaluation of the bump stock.

She concluded:

If the focus is
—as it must
be—on the trigger,
a bump stock
does not qualify as a “machinegun.” A semiautomatic rifle
shoots a single round
per pull of the trigger and the bump stock
the pull is accomplished. Without a bump
, the shooter
s the trigger with his finger for each shot.
With a bump stock, however, the shooter
—after the initial
—maintains backward pressure on the trigger and puts forward pressure on the barrel with his non-
shooting hand;
these manual inputs cause the rifle to slide and result in the
finger pulling the trigger.

Type Devices
, 83 Fed. Reg.
at 66,533 (“The constant forward
pressure with the non-
trigger hand pushes the firearm forward,
again pulling the firearm forward, engaging the trigger, and
firing a second round.”). T
he bump stock therefore
whether the shooter
finger or keep
s it
. It does not change the movement of the trigger
, which “
must be released, reset, and fully pulled rearward
subsequent round can be fired.” Verified
Declaration of Richard (Rick) Vasquez, former Acting Chief
of the Firearms Tech
. Branch of ATF, at 3–4.

Like countless other Americans, I can think of
a bump stock. That thought
, however
, has
nothing to do with the legality
of the Bump Stock Rule. For
the reason
s detailed
, I believe the Bump Stock Rule
expands the statutory definition of “machinegun” and is
ultra vires
In my view, the plaintiffs are likely to
succeed on
the merits of their challenge and I would grant them
preliminary injunctive relief.

Accordingly, I respectfully dissent