U.S.A. – -(Ammoland.com)- 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 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.
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.
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… Read more »
“They” are welcome to come and take mine anytime. Just come heavy!
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… Read more »
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? ?
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… Read more »