U.S.A. –-(AmmoLand.com)- Bump stocks have faded from the headlines. Most in the firearms community have been outraged that a federal administrative agency could make such a radical change in the law, as to ban items the agency previously ruled were perfectly legal, without any action by Congress or the President.
In the Tenth Circuit, a legal challenge has been percolating.
On March 26 of 2018, the BATFE reversed its previous rulings on bump stocks and issued a rule change that bump stocks would be considered automatic firearms. Over half a million bump stocks had been legally sold and owned. The new rule did not allow for grandfathering of existing stocks, or for compensation for the devices.
In the Tenth Circuit, Clark Aposhian, of Salt Lake City, Utah, filed suit in the United States District Court for the District of Utah, claiming the BATFE did not have the authority to change a law which had been made by Congress, and which they had been upholding for decades. The suit was backed by the New Civil Liberties Alliance (NCLA). The NCLA frames the case this way:
May a federal agency rewrite a federal statute? May that rewrite turn otherwise innocent Americans into criminals? Those questions are what this case is about.
The case was filed on 16 January 2019. On 15 March 2019, the Circuit court denied the motion for a preliminary injunction. The motion was appealed to the Tenth Circuit.
The three-judge panel issued a split decision on 7 May 2020, against Aposian.
Aposian petitioned for a rehearing of the case by the Tenth Circuit, en banc. Aposian made the case the Tenth Circuit was violating their own previous precedent.
On 4 September 2020, the Tenth Circuit agreed to re-hear the case, en banc.
The effect is the bump stock ban rule change by the BATFE is in play and may be ruled to be unconstitutional, in the form of a preliminary injunction against the law.
When a circuit court agrees to review a case en banc, the odds are a majority of the judges do not agree with the District Court decision. Thus, the odds are the Circuit Court will reverse the District Court decision. It is not certain, of course. But that is the way to bet.
Will the bump stock ban be ruled unconstitutional?
No one knows. But the chances for a ruling against the ban just got a lot better.
The case does not address the takings clause of the Constitution, at least not yet. The Supreme Court has discredited regulatory “takings” since the Roosevelt revolution in the Courts, which eliminated Constitutional rights to property, except as those rights were established by positive law. As positive law can be changed at any time by statute, those rights have no protection from regulatory takings.
Most people intuitively reject that argument, which is one of the things driving civil forfeiture reform in the United States. Having rejected natural property rights in the late 1930s, the Court could re-establish them in the 2030s. It has not done so yet.
If the Tenth Circuit finds the bump stock ban regulation to be unconstitutional, the finding would be valid in the Tenth Circuit. It seems likely the Administration would appeal the finding to the Supreme Court.
As a co-equal branch of the Federal Government, the court would not be required to take the case. By court precedent, however, this would be a prime candidate for consideration, because it creates a clear split in the circuit courts and is an opportunity to clear up questions about how much power the Congress can give to the administrative state.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
So, here is an idea that I have been mulling around. If a state can claim indepence from federal marijuana laws, it should be able to claim independence from federal firearm laws. Moreover, a municipality can do the same. In Idaho, there is a town that ruled that marijuana was “a lowest priority crime”. AKA, arrest the guy for jaywalking before smoking a joint. Just, do the same with guns. Imagine the revenue a city would get if they announced that they decriminalized all federal firearm laws!
Indeed. One glitch, though, is that many of the pot smokers are anti gun dims. Try talking with them to inform them that it’s a federal felony to use marijuana while owning, carrying, using guns and you’ll see.
Not many I”ve ever known. Don’t forget that’s a federal law. No local coutny or state LE can enforce that one. Just make sure your green grass isn’t found by any fed agent whilst you are armed. The real time risk of a Fed bust is relativley low, especially if the locals look left when the weed is on their right. That said, I refuse to be involved with the marihootchie at any level BECAUSE of my far higher priority to ocntinue being involved with firearms. My decisioin. When the feds get real that may change. Until then, I’ve made… Read more »
a few years bac Montana enacted the Made in Montana Stays in Montana law regarding firearms. I think it actually became law. Then the Feds wandered onto the stage and declared they’d make things rough for FFL”s in the state that upheld the law.. meaning those dealers could no longer purchase firearms or ammunition through the wholesale distribution system. I think that law is still ineffect, but is handled rather quietly. FFL’s have figured out how to keep their noses clean in the eyes of BATF. lAny state or local jurisdiction could, if they wished, do the same thing wiht… Read more »
So what happens to all the people who had to destroy or turn in their bump stocks?? What about the manufacturer who had to destroy their inventory and was hurt financially by this??? I’d like to see the BATF fined and be required to make compensation.
I’d like to see the BATF abolished. It would only take a long stroke by Trump with a sharpie……..
Sounds good, whether he can legally do it or not!
From what I understand the ATF was not established by Congress. Maybe someone could elaborate on who signed it into existence?
You are correct. But Congress allowed the ATF to change the definition of “bump stocks” to machine guns. Which they (atf) didn’t have and with the help of the NRA and Trump’s lack of knowledge about guns, I assume he thought he was doing the right thing and signed it! Although he made a huge mistake. I could be wrong, that’s just my understanding.
I know I heard how the ATF was originally brought into existence, but at my advanced age I forgot. I believe someone signed an executive order and created it sometime after 1934?
You mean to say you want an ILLEGALLY SET UP BUREAUCRACY, by the QUESTIONABLE IRS, called the ATF abolished?
I TOTALLY CONCUR!!!!!!!!!!!!!!
Only Congress can rewrite the 1934 National Firearms Act and has done it before. An administrative change to the law is invalid. ATF screwed up.
And since that law is illegal, should we follow it?
There is this short little book that should be required reading, On the Duty of Civil Disobedience by Henry David Thoreau. Leftists in academia found the title inconvenient so they often shorten it to just ‘Civil Disobedience’.
At 28 pages, it is more of an essay. Free download!
Article 1 section 8 of the Constitution. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate… Read more »
3 big problems with using Article 1 Sec 8, to justify the NFA. 1. It does not allow them to ignore other portions of the document. 2. 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. 3. 10A: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Seeing how The NFA is directly infringing on the right of the people to keep and… Read more »
you are probably focusing on the bit about “to regulate commerce between the states”. The current radical abuse of that “power” is based on the use of a modern definition of the word “regulate”, NOT the one the Framers had in view. Today’s FedGov take that clause to mean they must make al manner of restriciton,s regulatioins, laws, policies, etc, on anything that has, might, could have, did, or did not, move between two states, or any component there of may have done. The Filburn case, back about 1936, busted a farmer for raising wheat for his own family on… Read more »
Remember “Pro gun”: Trump told them to do this after Wayne La Pierre said go for it
Yes, those of us who choose to read the tea leaves know that the NRA lies, mususes fund, gave us nics, ect.. and that Trump, ultimately is a political operative (they are all actors), who will quickchange into whatever costume is required for the scene.
Well they are lobbyists, so yes they are exactly the same, a pox on our Republic.
President Trump, quite simply, trusted the NRA and the BATFE far too much with this. Clearly, He’s learned his lesson. The NRA stuck daggers in all of our backs.
I foresee the courts taking their time with this, to allow some hidden protections for the BATF against an onslaught of lawsuits. If everyone that owned one filed suit along with the manufacturers that built them, Lord, the BATF would go bankrupt!
A government agency doesn’t go bankrupt! The tax payer is footing the bill!
And we all wet our pants.
no thanks. I prefer mine staying dry. YOU do what YOU want. COunt me out on that one.
Let’s hear it for rational interpretations, restricting violations of our 3A rights!
Not quartering soldiers??? Well it is pretty much the only right they dont infringe upon…..
it seems allowing the atf to overreach may have been our best option. congress was working on a far wider bill that encapsulated many more devices than just bumpstocks.
since the doj and atf took the lead, our chance to hault this is much better than had Pelosi and Feinstein passed draconian bills thru congress.
agency vs congress.
https://www.gunsamerica.com/digest/feinstein-introduces-bump-stock-ban-legislation/
Things will have to drastically change before this will be overturned. Control of Congress with 2A supporters and a supreme court that has enough nuts to hear it, then change it by interpreting the constitution as it was written!
For now just keep them hidden with quick access…lock & load
A civil war would drastically change things…
We’re almost there.
In the article you referenced you will find the names of a whole bunch of RINOs.
A list of true republicans would be shorter!
Come on Dean, quit trying to blow smoke up my ass….”without any action by Congress or the President“
I still will vote for the orange man, even though he lied to us supporting 2A.
That’s total BS. If the President is guilty of anything with regard to this debacle, it’s that he trusted the NRA and the BATFE to make the proper and legal decision. THEY are the ones who advised this President on the issue. To say President Trump doesn’t support our 2A today is a blatant lie.
So, it’s the NRA’s and DOJ’s fault? Who knew that the NRA and DOJ have more power than the President of the United States. Learn something new every day on Ammoland!
To say that the guy who advocates for increasing the age to buy arms, red flag laws, banning silencers, banning firearm accessories, the TAPS Act, more background checks, and who signed gun control into law via the Consolidated Appropriations Act of 2018 supports the 2A is a blatant lie. Trump is nothing more than a butter and a Fudd and has done more in his first two years to violate the 2A than the previous two administrations combined. You’re either ill informed or suffering from some severe cognitive dissonance.
What’s your alternative? The party that will do all they can to take your guns with their candidate who is the living version of Jeff Dunham’s Walter?
There is no alternative! We are getting f*cked either way! Once candidate is just more open about it, while the other candidate gets embraced by the gun community for f*cking them over.