Appeal Filed after Trump-Appointed Judge Rules for Administration’s Bump Stock Ban

Judge Friedrich just increased the likelihood that this is what gun owners who voted for Donald Trump will soon be faced with if they do not abandon their principles and surrender or destroy property they obtained in good faith after the government had determined it was lawful to own. (ATF Facebook photo)

U.S.A. – -( A Notice of Appeal requesting was filed Monday by attorneys Stephen D. Stemboulieh and  Alan Alexander Beck with the United States Court of Appeals for the District of Columbia after the United States District Court issued an order denying a preliminary injunction in challenges to the Trump administration’s “bump stock” ban. The appeal “would further request expedited treatment in this appeal due to the urgency of the Final Rule going into effect on March 26, 2019.”

In the Memorandum Opinion, U.S. District Court Judge Dabney L. Friedrich, nominated to the court by President Donald Trump, ruled against all motions for a preliminary injunction to find for the administration in the cases of Guedes, et al., v. ATF and Codrea, et al. v. William P. Barr:

DC District Cout Opinion in Trump Bump Stock Ban Challenge

Denied were motions that “ATF violated the Administrative Procedure Act,” that the rule  “violates the Takings Clause of the Fifth Amendment,” and “that then-Acting Attorney General Matthew Whitaker lacked authority to promulgate the rule.”  In doing so, Judge Friedrich made some assumptions unsupported by fact and some contentions where she admitted as much.

Judge Friedrich begins with the assertion that “According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the [Las Vegas] gunman used multiple ‘bump stocks’ in the attack, which increased his rate of fire.”  As contrary to most news reports, political claims and public opinion as this may sound, that has never been definitively established, or if it has, that information has not been made public. True, guns were recovered from the scene with bump stocks attached, but, as a Freedom of Information Act response documented, ATF was denied inspection access to weapons at the scene to determine if the ones used had been modified with “machine gun fire-control components or known machine gun conversion devices,” and to this day no report of technical examination has been released.

“[T]he bump stock rule was based on a legal, rather than a factual, determination; crime statistics did not play any role in ATF’s analysis,” Judge Friedrich noted.

She further admits that critical terms such as “single function of the trigger” and “automatically” are “ambiguous,” and therefore a prior decision in the Chevron v. Nat. Res. Def. Council case “permits an agency to reasonably define undefined statutory terms.”

In reaching that conclusion, Judge Friedrich decided it “reasonable” to ignore prior Bureau rules, prior arguments made by ATF in court cases, the technical assessment of Rick Vasquez, the former head of the Firearms Technology Branch, and his sworn statement that the initial rule against the Akins Accelerator was made by political appointee and Acting ATF Director Michael J. Sullivan  against the advice of legal counsel and technical experts.

“To the extent Guedes argues that Vasquez’s views are entitled to special weight because he is a former ATF official, Guedes is incorrect,” Judge Friedrich asserted in a footnote, arguing that a prior unrelated court decision demands bureaucratic diktats trump technical determinations. “The deference afforded under Chevron extends only to the agency’s official interpretations, not to the views of its former officials.”

“Given the language of the rule and ambiguous nature of the wording I have come to the conclusion they should get it over with and get to the point they really want to make and just say ‘We want the guns, all of them,’ because they do,” Len Savage, President, Historic Arms, LLC and longtime colleague noted about the ruling.

The same legal ambiguity holds true for the “takings” motion, regardless of admitted “merits”:

“Codrea also asserts that the bump stock rule violates the Takings Clause because it fails to provide compensation to current bump stock owners who must destroy or abandon their property. Regardless of the merits of Codrea’s takings challenge, however, it does not justify preliminary injunctive relief.”

That Friedrich is a Trump appointee is relevant to note because it’s telling as far as expectations go. This also does nothing to bolster the credibility of some Trump apologists who have been insisting that the bump stock rule is some sort of 3D chess gambit cleverly designed to be overruled by the courts. That said, it would admittedly not be realistic to expect a more supportive decision had this been assigned to a Democrat appointee. And that ought to give gun owners a good idea of how “legally” hemmed in we are.

Where we stand now is unless the D.C. Appeals Court grants the appeal with expedited treatment, on March 26 I and others will become felons if we do not surrender or destroy property previously deemed lawful by the same bureau now saying it’s not.

UPDATE: The government has filed its opposition to the joint motion to expedite.

About David Codrea: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. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.

  • 35 thoughts on “Appeal Filed after Trump-Appointed Judge Rules for Administration’s Bump Stock Ban

    1. Boycott the NRA Annual meeting April 2019.
      Boycott all Friends of the NRA Dinners.
      Boycott the NRA Guardian Insurance program.
      Tell NRA HQ to fire Chris Cox.
      Chris Cox himself told the PRESIDENT OF THE UNITED STATES OF AMERICA DONALD J TRUMP … THAT BUMP STOCKS VIOLATED THE NFA OF 1934 AKA GO BAN BUMPSTOCKS !!! Chris Cox always keep and bear arms but never says shall not be infringed. Millions will quit the NRA if Chris Cox ever tries to replace Wayne LaPierre … it was Wayne La Pierre that called the feds atf etc boot jack thugs in the 1900’s and he was and is 100% correct.

      Call the NRA HQ tell them about the 3 boycotts above and you will resign your NRA membership too, if in 10 days the NRA HQ not members who started this entire mess mostly with the sorry worthless nazis Chris Cox mouth to protect his elite millionaire status of his class 3 gun collection . Tell the NRA HQ to fire Chris Cox now, Montana kicked him in 25 years and Texas Arkansas did the same 2 years ….

      Where is the outrage over Benchmade destroying guns just like the outrage over S&W in the 1990s’ , the two writers in the 2000’s , Dicks Sporting Goods, yes even Ruger with 10 rd magazine limits … The Second Amendment says ARMS not firearms so that includes knifes.

    2. I keep hearing that it has not been proven that bump-stocks were used.
      However, go and listen to the soundtrack of just about any of the videos of the attack. He was clearly not pullung the trigger once per round with his finger. There have been no claims that any full-auto weapons were present, and listening to the varying rate of fire, its fairly clear that it was no real full-auto mechanisms involved, which do not vary in rate like that.

      It’s a reasonable conclusion that bumps stocks were used.

      However, that does not constitute a sufficient reason to ban them, and certainly not by trying to pervert the classification of what constitutes a machine gun to fit.

      1. PJP, you are mistaken. When using a bump stock you are pulling the trigger separately for each and every round. However, it was clear to me that evening that he was using a bump stock from the sounds of the firing.

      2. @PJP, Even if everything that you wrote were true, the judge does not have the power to presume facts not proffered by one side or the other. The judge as abused her discretion.

      3. Wrong. Police radio traffic clearly stated on more than a couple occasions that there was multiple shooters engaging in automatic weapons fire. The opacity of the Vegas shooting investigation is unprecedented and there is a lot more about this incident that is just plain hinky.

        More than a couple cops I know have referred to that incident as a ‘false flag event’. I concur. So unless you have some independent (non-government) evidence that PROVES bump stocks were used, put a sock in it.

    3. Is no one going to comment on the merits of this decision? First of all the judge did was deny an injunction
      Second off, declaring property contraband and making you discard it is an accepted legal concept.
      The Taking clause of the Bill of Rights only comes into affect if the government takes your property and either uses it or gives it to someone else.
      When marijuana, and later cocaine were declared illegal drugs there was probably some of both in every medicine chest in America.
      No one suggested paying all the people had legal marijuana and cocaine for their property.
      The real merits of this case lie in the definition of what constitutes a machine gun.
      Congress made a clear definition in the text of the law, and President Trump ordered ATF to re-interpret the law and write a regulation to ban bump stocks.
      My question is why did they pick the DC circuit to file this in?
      A more conservative circuit would’ve been a far better choice.
      Now the case will make its way to the Supreme Court.

      1. @DocDuraCoat

        A few points if you will, since you decided to say “Congress made a clear definition in the text of the law”. I love when people say things when they don’t know anything. Since the law is so clear, that will be point one.

        1. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” No infringement.. That is the level set, the restriction against all forms of government. Congress has never had ANY right or authority to touch firearms, knives, or otherwise. That includes machine guns

        2. Loss of or use of property via denial is still separation. Since you brought the law into it, I would like to point out Article 1, section 9 in the third clause which forbids congress from passing any “Bill of attainder or Ex Post Facto law.” Any item legally possessed before the law must be grandfathered and considered legal unless…….

        3. You refuted the takings clause, but left out the clause right before that in the 5th Amendment, which is the Due process clause preceding confiscation or public use. “nor be deprived of life, liberty, or property, without due process of law;” As brought up in point two, if the government is Forcing mandatory confiscation or destruction of said devices after the fact, then it Must Provide compensation otherwise such a law is null and void. This is a moot point however, as per point one, they do not have the authority to touch anything relating to “Arms” period. End of story.

        You don’t have to agree with it or like it, but that is what our constitution says. Congress, nor the president, nor the courts have any authority to touch this, or in case you have forgotten Article 6 section 2. All levels of government are bound under the Constitution as the supreme law of the land. It is the law which creates and restricts the power of the Federal Government. Any state which is a member agrees upon entry that it over rules any state actions which conflict against its restrictions on government. In short, those three points over rule any argument you have because there is no level of government which has authority under the constitution to do so.

        1. Also before anyone comes at me saying “Docduracoat is a 2nd supporter”, that is not why I criticized his comment.

          1. He verbally legitimized congressional transgression against the constitution.
          2. His comment comes from the position that the judicial system has authority.
          3. His comments concerning the 5th amendment was wrong.

          He has had good comments in the past, but this one is not good. Especially in light of the horrendous actions of our House of Representatives passing HR 8 last night. For further reference, reread point number one of my previous comment.

    4. Trusting Government is like having the Fox guarding the Hen House. They give the illusion of control to the people, but ultimately the decision is theirs and if they say “No,” what choice do we REALLY have? Go to jail? Argue in court just to be told No again while the rest of the world continues on?

      The Government upholds the constitution, and the rules about democracy and maximum term lengths and protection against overreach.

      But it won’t take much for them to decide the piece of paper words are written on isn’t in their best interest anymore.

      They use propaganda to sway the neutral masses opinions. Gun Grabbers will always be Gun Grabbers. Gun Owners are already Pro 2A. If we learned anything in history class when covering WW2 it’s that propaganda works!

      The rest of the neutral populace is who decides which side wins, and gun control on the surface looks very logical and common sense because the neutral masses lack the skepticism necessary to see what is really going on.

      The reality is that Gun Owners come off as crazy conspiracy theorists, and Gun Grabbers come off as concerned parents wanting their babies to be safe. This is by design, it is the success of their propaganda. They are good at marketing because Feel Good marketing that plays on people’s “better safe than sorry” emotions is easy. The wind is at their backs.

      If we are all disarmed like they want us to be, the Constitution becomes as worthless as a Gun Free Zone sign in Florida. Then they are free to do whatever they like.

      But those words sound like those of a crackpot conspiracy theorist, and that’s the image we need to fix if we are going to succeed.

      We need to stop being “Gun Owners,” and become “Your next door neighbor and friend who happens to own a gun, and a car, and a microwave, and all the other things that are normal to own.”

      1. It is a sad situation in this America of ours. Sorry, but the whole system is broken, the Traitors are dug in too deep – and, the many evil branches of tyranny is growing by the week, not decades like before. Our tax dollars are funding this Tyrannical OP, and they are NOT backing down. ONLY another Revolution can possibly stop this madness. Let the Oath Breakers and the “Brown Shirts” fire their first shots at us – let them be exposed as the evil agressors that they really are. This unfortunate war is on the horizon, and unfortunately like before, 3% or more or less of the American population will be willing to be a pivotal part of that war, and even lay down their lives for that Freedom, and NOT FOR TYRANNY. We will find out who are the real Americans, and who are not. We need our Patriot neighbors to be on alert for any possible tyrannical aggression towards their peaceful Patriotic neighbors, who know what is going on here, and are sick and tired feeling helpless to stop it – and, forget about the darn corrupt court system. The battle will be fought against us where we live, work, shop, or travel to and from – be ready Patriots.

    5. Nobody is disarming anybody, we stand our ground as, WE THE PEOPLE. Once we recognize any unconstitutional ruling as law we give up our rights to defend against that unjust, unconstitutional ruling through ACCEPTANCE.

      1. Really? Nobody is disarming anybody?
        This may be an unpopular opinion but I’m tired of this rhetoric. Every day people are being disarmed by red flag laws. Every year more and more laws infringe on our rights. We are currently being disarmed, and we’re doing nothing to stop it.

    6. I have never had any interest in owning a “bump-stock”. However, I couldn’t be any more maddened by this “ruling”. The Takings Clause is clear and so is the Supreme Court’s previous decisions regarding the Takings Clause. If any single section of the Constitution is null and void, then the entire legitimacy of the document as a whole has come into question—perhaps that’s the intent? No matter your stance on bump-stocks or even the 2A in general, this should be alarming.

      All aboard, next stop: reinstatement of slavery.

      1. Most people won’t care until they come after what they hold dear. I have no interest in owning a bump-stock but I don’t want to stop someone from owning one. This action by President Trump and the ruling on the preliminary injunction are another chip off the stone, another chink in the armor.

        The Democrats in the House have introduced another Gun Control Bill. Hi cap mags, semi auto rifles among every other wet dream ban they can think of. But, so many gun owners fail to speak up because they don’t want to take away their wheel guns or hunting rifles, yet. It will be too late when they designate their bolt action, high caliber, scoped hunting rifle as a military/LEO only sniper rifle. By then it will be too late.

    7. As the song goes “Now that I’m on the radio (a big shot) How do you like me now?” says Trump. What we need to remember, and keep in the forefront of our minds is that all politicians, regardless of their stripe, or promises, are liars and thieves, and will always, always, do what they perceive is in their best interest. Not what is in the best interest of the country or their constituents. Politicians, most of whom are lawyers, will be lying if their lip are moving. We need to ask the question “Why does a person (politicians) give up a successful career, making a lot of money, to run for an office which pays them less money?” You wouldn’t do it, nor would I unless there was clearly something in it for me. And the answer is more money or power, which means more money.

      1. This is sickening, ridiculous, and dangerous towards all Patriots of America. That Las Vegas mass shooting was a disgusting “Red Flag” attack against so many innocent humans. And, who’s the sicko that would give the “OK” to turn ON those Flood Lights. It was a Turkey Shoot for those “active” shooters, yes, SHOOTERS, to say otherwise would be a crime. So, the Oath Breakers did their horrible crime against humanity that night, with the help of our tax dollars, and now the Traitors in Office want to push this ridiculous and treasonous Bill forward. Whatever the SOBs pass, if it does not jive with the Bill of Rights, the term is called NULLIFICATION – We The People will ignore such treasonous Bills. And, you Traitors can pass all kinds of marxist/commie/fascist Bills you want – We The People will ignore such Fake Bills – Null and Void.

    8. Did not Congress defined what constitutes a “machine gun”? Did not Congress refused to ban bump stocks when a bill was before it? Moreover, did not Congress refused to change the definition of what constitutes a machine gun?

      Did not thousands of law abiding citizens engaged in commerce purchasing a product which at the time was legal to purchase, possess and use?

      Is it a fair statement then, unelected public servants at the executive branch changed a definition (which Congress refused to do) and determined this bannning of bump stocks to be retroactive – meaning no grandfather clause?

      Is it also a fair statement, the executive branch now makes law – defacto law once forbidden by the Constitution is now permitted – and the commerce clause is chilled?

      Yep, here we go again!

      1. Well stated! ‘b.feinstein’ said: “IF I had 51 votes, I would have said, Mr. and Mrs. America – – TURN IN YOUR WEAPONS – – (ALL OF THEM)!!!!!!!!!!!!!!!!!

    9. Folks, it is clear Trumpet HATES Guns and along with the vile, over-reaching Almighty Gov’t want guns gone period – that is absolutely their end game and no one does a thing about it. When is enough, going to actually be enough? I guess when all the guns have been seized then some action will be taken but it will be way too late boys and we can only thank ourselves. When is enough enough? ?

      1. The main problem here is that, most Americans are allowing our SERVANTS to act as our RULERS and to rule over us, even when against the Constitution that states what their powers are!
        The people are saying, ugh, they said so, so I guess I have to do it. Instead of refusing and reminding them that they are NOT there to rule over us.
        My question is, Who the hell do they think they are, and why do approximately 500 politicians think they are there to rule over us and tell 330,000,000 people what to do and how to live? THEY NEED TO BE PUT IN THEIR PLACE!
        Defend and uphold the Constitution with the meaning and intent of the time when written, or you are out! Refusing to uphold your oath is treason and you go to prison or worse!

    10. And the NRA? …crickets.
      No, just Stemboulieh and friends, going it alone for our rights like they have against the Hughes amendment.
      Not trying to sound like the gun spam we get every day, but JFC this is it! Criminally enforceable rule/regulation changes against our basic rights, without new laws under representation! Redefining legislation, taking lawfully owned property without compensation, direct 2nd amendment infringement.

      NFA, Hughes, Feinstein’s test run (RIP 2004?), accelerator triggers, bump stocks, (still blind to the slide?) magazines, adjustable stocks (in the CURRENT bill), scopes, semi auto, defense calibers, hunting calibers, centerfire, rimfire, airguns, pointed instruments (knife rights, anyone?)… England/EU/Australia. Heller be damned. Tyranny by beureaucracy.

      Goodby 2A.

      1. This one?
        e »
        May 22, 2008
        Matthew Friedrich Named New DOJ Criminal Division Chief

        A veteran prosecutor and top aide on criminal matters to Attorney General Michael Mukasey has been tapped to lead the Criminal Division at Main Justice.

        President George W. Bush today designated Matthew Friedrich as the acting assistant attorney general in replacement of Alice Fisher, who leaves the department tomorrow.

        Friedrich is Fisher’s former chief of staff and also was a principal deputy assistant attorney general in the Criminal Division.

        Friedrich has served on the department’s Enron task force and previously worked as one of the lead prosecutors in the Arthur Andersen case when he served in the Eastern District of Virginia. A former assistant U.S. attorney in the Eastern District of Texas, Friedrich joined the department as a Tax Division attorney in 1995.

        In 2003, Legal Times had this profile of Friedrich.

        Posted by Pedro Ruz Gutierrez on May 22, 2008 at 02:54 PM in Justice Department | Permalink

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      1. @Ned, Negating bureaucratic dictates and unconstitutional legislative statutes, depends upon the judiciary. Filling the federal judiciary with people that support the Constitution, depends upon us voting for the “not corrupted yet” candidate in the primaries.

    11. When I read the Opinion earlier today, it supported what I have said for some time; “Congress and the Judicial have Granted these agencies “Title of Nobility.” Unconstitutional, Period!

    12. So, somebody’s going to have to have property taken, and be facing incarceration before the arguments are relevant?

      This is EXACTLY why I keep on taking the stance that ONLY a statutorily defined “person” is subject to the federal (or any other corporate, statutory organization pretending to be “government”) “rules”, “policies”, “procedures”, “statutes”, “codes”, etc. The so-called “RULE” of the ATF (or any other agency, for that matter) is that of a _pretend government AGENCY_, which is actually a corporation separate and distinct from the “government” corporation that created it, and NOT a part of any valid and legitimate government. We haven’t had a legitimate government since at least the 1870’s, if not back to 1861 when the Union was dissolved. THEY know it. It’s about time WE became aware of that fact, as well, and put to rest any notion that we owe them anything other than disdain and contempt. They redefined the people (men and women) of America to be the corporation’s enemy when they included us in the Trading with the Enemy Act of 1933. Maybe it’s time we returned the favor and acknowledged it. The ONLY reason we lose in THEIR admiralty/maritime courts is because we go in under the legal terms of admiralty, or with “representation” (attorneys). We have already lost at that point, because we do not go in as men and women with God-given Rights, but chattel, serfs and slaves of the corporations by calling ourselves “plaintiff”, “petitioner”, “defendant”, etc., and fail to move the court into their common law side.

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